Neutral Citation: 1996 ONICDRG 180

OIC A-950890

ONTARIO INSURANCE COMMISSION

BETWEEN:

BERNADYNA BIGDA

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Bernadyna Bigda, was injured in a motor vehicle accident on July 13, 1990. She applied for and received statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by Dominion on January 23, 1994. The parties were unable to resolve their disputes through mediation and Mrs. Bigda applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Bigda entitled to weekly income benefits from January 24, 1994 pursuant to section 12(5)(b) of the Schedule?

Mrs. Bigda also claims interest on any amounts owing, and her expenses incurred in the hearing.

Result:

1. Mrs. Bigda is not entitled to further weekly income benefits.

2. Mrs. Bigda is entitled to her expenses of the arbitration.

Hearing:

The hearing was held in Hamilton, Ontario on February 27, 28, 29 and March 29, 1996. The testimony of Mrs. Bigda was given through a Polish interpreter.

Present at the Hearing:

Applicant:

Bernadyna Bigda

Mrs. Bigda's

David F. Smye

Representative:

Barrister and Solicitor

Dominion's

William McClelland

Representative:

Barrister and Solicitor

Dominion's

Leanne Lagana

Officer:

Witnesses:

Mrs. Bigda

Mr. Fred Kasek

Mr. Paul Bigda

Mr. Chester Bigda

Dr. Harold Grossman

Ms. Patricia Harris

Exhibits:

The parties filed seven exhibits, including a surveillance videotape of Mrs.

Bigda.

Evidence and Findings:

Accident and Resulting Medical Problems

Mrs. Bigda was injured in a motor vehicle accident on July 13, 1990. She was 35 years old at the time and a resident of Hamilton, Ontario. She was riding as a passenger in a car driven by her husband. The car was either stopped at a red light or moving slowly in heavy traffic when it was rear-ended by another car. It did not hit the car in front of them. Mrs. Bigda was wearing her seatbelt at the time, but apparently slipped down out of the seatbelt as a result of the collision. It is unclear whether the car was seriously damaged, but Mr. and Mrs. Bigda were able to drive their car home following the accident. Mrs. Bigda maintains that she did not seek medical treatment until July 20, 1990, when she saw her family physician, Dr. Thomas Jaskot.

Mrs. Bigda's initial complaints were mainly of neck pain and headaches. Dr. Jaskot diagnosed a cervical muscle strain, post-traumatic headaches and chronic depression. She was referred to a chiropractor, Dr. Nancy Abram, in August 1990 for treatment and was diagnosed as having suffered a whiplash injury. She was also seen by Dr. Fionnuala Killian, a physical medicine and rehabilitation specialist, in January 1991 who noted limited clinical findings in relation to Mrs. Bigda's complaints of pain and suggested a course of psychological treatment. Mrs. Bigda testified that she suffered stiffness and pain in her left arm, hand and leg, as well as ringing in the ears from the time of the accident, despite the fact that these complaints are not explicitly mentioned in the initial medical reports.

Mrs. Bigda states that her condition has gotten progressively worse and that she is now incapable of doing even the most rudimentary housework without the assistance of her family. She states that she needs help putting on her clothes and bathing. She has not had marital relations with her husband since the accident. Mrs. Bigda's husband, Chester, and her son, Paul, testified that she has needed help with virtually all household and personal tasks since the accident. Mrs. Bigda has not gone out very much and has generally been very depressed since the accident. Her brother-in-law, Fred Kasek, who lives with the Bigda family, testified that she has changed "a hundred percent" since the accident, "from a normal woman to a cripple." He stated that she continually complains about her head and back and is always very weak. She has tried to do housework and shopping, but has required the assistance of her family. She always wonders when she will be able to work again.

Mrs. Bigda was born in Poland. She attended school there until she was 18 years old. She had eight years of grade school and three years of trade school in food preparation and cooking. She had no training in the English language. She worked in a "tool crib" in a factory in Poland until 1983. This involved distributing tools to workers in the factory and cataloguing and keeping records of the tools. She emigrated to Canada in 1987 with her two sons to join her husband who had come to Canada in 1984. When in Canada, she took care of her sons while her husband worked at a chrome plating plant. She began to work part-time at a factory preparing sandwiches for approximately a month in April 1990. She then started at her pre-accident employment, housekeeping at the Hotel Strata in Hamilton. This involved changing beds and dusting, vacuuming and cleaning rooms. Mrs. Bigda testified that she has never had formal training in English, but attempted to study English with her husband at home, prior to the accident.

Mrs. Bigda's claim in this arbitration is that she has developed a chronic pain condition as a result of the motor vehicle accident and has been rendered continuously disabled from engaging in any occupation or employment for which she is reasonably suited by education, training or experience. The Insurer maintains that the automobile accident was not a significant contributing factor in the development of Mrs. Bigda's current medical condition and that she is, therefore, not entitled to further statutory accident benefits. Pursuant to section 12(5)(b) of the Schedule, it must be shown, on a balance of probabilities, that the injuries Mrs. Bigda suffered in the motor vehicle accident continuously prevent her from returning to any reasonably suitable occupation or employment. Contrary to the submissions of Mrs. Bigda's counsel, I agree with previous Commission jurisprudence that the onus under section 12(5)(b) of the Schedule lies with Mrs. Bigda despite the fact that payments were made by the Insurer beyond the 156-week mark.² In any event, the first case referred to in support of Mrs. Bigda's argument (Lefebvre v. C.N.A. Assurance Co.³) involved substantially different language than that contained in section 12(5)(b), and the second case (Coombe v. Constitution Insurance Co.⁴) pertained to an insurer's obligation in light of an existing court order. I therefore, find that these cases are not applicable to the present situation.

Pre-accident Medical Condition

Mrs. Bigda underwent gall bladder surgery in Poland in 1983 without complications. She had menstrual problems prior to the accident and suffered headaches and back pain with those problems. Following the accident, in March 1993, Mrs. Bigda underwent a total abdominal hysterectomy as a result of menstrual problems she was experiencing at that time. Mrs. Bigda was inconsistent as to whether these later problems caused her back pain. She first testified that they did, but then denied that she told Dr. F. Lynes (the physician who performed the hysterectomy) that she experienced severe low back and abdominal pain with her periods. Nevertheless, the surgery apparently alleviated the menstrual problems, although she still complains of stomach cramps, pressure on her spine, sleeping problems and headaches.

Just prior to the accident, Mrs. Bigda had two medical incidents. On June 28, 1990, she felt weak and afraid at work, and fainted. She was admitted to Joseph Brant Memorial Hospital with complaints of upper-abdominal burning and chest pain. She was noted as speaking English poorly. She was in a very anxious and stressful state. She apparently stated that she had had chest pain for the past three years, and that her current complaints began two weeks earlier. On cross-examination, she denied telling the hospital about chest pain for the previous three years or being under a lot of stress. She was prescribed antacids, released and referred to her family doctor for follow-up.

The following day, Mrs. Bigda suffered a similar episode at her home. This time, she was taken to Henderson General Hospital where she was diagnosed as suffering from depression. The hospital records note that she reported left arm pain and dizziness. Mrs. Bigda denied telling the hospital this. The treating physician chose not to initiate anti-depressant medication, and referred her to her family doctor. Dr. Jaskot felt she had suffered two panic attacks and referred her to a psychiatrist, Dr. Dziurdzy. Dr. Dziurdzy diagnosed a major depression and panic disorder, and Mrs. Bigda was started on anti-depressant medication.

Mrs. Bigda was off from work as a result of these two episodes. However, she maintains that if the motor vehicle accident had not occurred, she would have returned to work on July 14, 1990 (the day following the accident). She testified that she felt capable of returning to work and, in fact, had arranged with her employer to return. Mr. Kasek testified that Mrs. Bigda had recovered sufficiently from the panic attacks to return to work. Approximately two years later, Dr. Jaskot reported that Mrs. Bigda had "improved dramatically" after the panic attacks and was to have returned to work, but did not due to the motor vehicle accident.

Causation

The physicians in this case differ as to whether Mrs. Bigda's condition is causally related to the motor vehicle accident.

Mrs. Bigda was seen by Dr. McCracken in August 1991 at the request of the Insurer. He reported that "the most probable initial dignosis [sic] would be that of a traumatic inflammatory reaction component superimposed upon this underlying pre-existing degenerative disease in the cervical and probably in the lower thoracic spine region." He stated that "this degenerative disease is...contributing to the present levels of clinical impairment...." He also stated that Mrs. Bigda's pre-existing emotional depression and associated non-organic psychogenic components would contribute "to a very significant degree to the present levels of clinical impairment." Her "overweight component" was also contributing "to a significant degree" to her clinical impairment, and her "prolonged application of chemical medication" also contributed to this. Dr. McCracken concluded as follows:

"The accident did not cause the degenerative disease. The accident did not accelerate the degenerative disease. In the absence of obtaining a history from the patient or from the patient's physician of spontaneous onset of cervical and thoracic spine pain antedating the accident in question, it must be considered that the accident served to function as the initiator of onset of subjective pain in these 2 regions of the spine at a time earlier than what normally might have been expected had the accident not occurred.

The traumatic inflammatory reaction component and the temporary enhancement factor will no longer be contributing to the present levels of clinical impairment by virtue of the fact that resolution will have occurred with these 2 components at this point in time. On this basis, therefore, I do not identify any residual permanent partial disability which I am able to relate to the aftereffects of the accident in question."

In July 1992, Dr. A. T. Ghouse, a physiatrist at the Traffic Injury Rehabilitation Program ("TIRP"), reported that Mrs. Bigda probably had a fibro-ligamentous cervical and lumbar strain as a result of the accident, but then developed a more diffuse symptomatology, "reminiscent of fibromyalgia." Dr. Ghouse's colleagues, Dr. Dermer and Ms. Fran Morgan, reported in July 1992 that by March 1992, Mrs. Bigda was quite stabilized psychologically and that her family reported that she was cooking, cleaning, keeping house and exercising. However, she had "marked difficulty psychologically [making] the shift from that of the patient role" after her husband lost his job (which had been at some point in 1992). It was felt that Mrs. Bigda's overall functioning "might well improve" if her husband's employment and financial situation improved. A work-trial was not recommended due to Mrs. Bigda's "vulnerable and fragile" psychological state. The only recommendation was for Mrs. Bigda to continue with her exercise programme.

In June 1993, Dr. Bhalla, an orthopaedic surgeon, diagnosed Mrs. Bigda as suffering from soft tissue injuries to her cervical and lumbar spine with marked anxiety and depression and chronic pain behaviour. He thought Mrs. Bigda's "main problem is psychological with chronic pain behaviour." He stated that Mrs. Bigda would likely not return "to any kind of work before the motor vehicle accident case is settled." Mrs. Bigda was described as "very labile and vulnerable." On October 18, 1993, Dr. Jaskot reported that Mrs. Bigda suffered from chronic pain, post-traumatic stress and probably a type of fibromyalgia.

Dr. John Chong, Director at the Centre for Human Performance and Health Promotion, Sir William Osler Health Institute, saw Mrs. Bigda in August 1991 and August 1993. He reported in 1991 that Mrs. Bigda had tight and tender neck muscles and suggested further diagnostic work to ascertain her level of impairment. In 1992, following a team meeting at TIRP, Dr. Chong reported that Mrs. Bigda would benefit from additional exercise and that further psychiatric assistance would "assist greatly in getting her back to some form of function in the future." In 1993, Dr. Chong examined Mrs. Bigda and noted that her shoulder and neck muscles were in "absolute spasm." He felt this was a "complex chronic pain case."

At the request of the Insurer, Mrs. Bigda was seen by Dr. Rajka Soric, physiatrist-in-chief at Mount Sinai Hospital, in October 1993. Dr. Soric reported that "examination was impossible to perform because whatever I attempted to do had to be discontinued as patient stated she was in agonizing pain." However, on the basis of the limited examination that was performed, Dr. Soric stated that "this most dysfunctional lady did not...sustain any permanent injury to the musculoskeletal system. Her behaviour struck me as histrionic." Dr. Soric concluded as follows:

"As I have not been able to convince myself of any musculoskeletal abnormalities, I do not recommend any further investigations and/or treatments for her musculoskeletal complaints. I also cannot explain the degree of her functional limitations. I do not feel these are due to any musculoskeletal pathology. Mrs. Bigda is not motivated and she may very well have an additional psychological problem that compromises her level of function. Hence, my recommendation for psychiatric evaluation."

Dr. Harold Grossman, a psychiatrist who saw Mrs. Bigda at the request of the Insurer in December 1993, reported that she suffered from conversion disorder, somataform pain disorder and dysthymia. He "assumed" that much of her disability was due to her chronic depressed state and that this "may be promoting" her discomfort. He "assumed" that much of her symptoms were somatized and he "could not understand" why all of her problems were attributable to the motor vehicle accident. He "wondered" if her disability was being promoted by her family's financial difficulties and dependence on disability insurance. Dr. Grossman apparently did not have any of Mrs. Bigda's prior medical records at the time of the assessment. He was told by Mrs. Bigda that she had not seen a psychiatrist previously. Dr. Grossman received a parcel of documents pertaining to the file from the Insurer in January 1994, but did not review them because he had already prepared his report. He stated that he did not think the Insurer was responsible for compensating a person with Mrs. Bigda's condition and that continued payment could actually perpetuate her symptoms.

Just prior to the arbitration, Dr. Grossman was provided with various documents pertaining to Mrs. Bigda's medical treatment. Based on this information, Dr. Grossman reported that the motor vehicle accident was not responsible for Mrs. Bigda's depressive disorder and that her credibility had been thrown into "serious question." He also stated that he "could only assume" that the emphasis in the materials on her somatic complaints adds credit to his diagnosis of conversion disorder and somataform pain disorder. Although he testified that any type of trauma could aggravate a pre-existing depression, he stated that Mrs. Bigda's various disorders were not related to the motor vehicle accident.

On cross-examination, Dr. Grossman stated that he had not seen Mrs. Bigda's full medical file to date and would feel more comfortable if he had. He felt Mrs. Bigda was genuine in her complaints and that she was in tremendous pain. He stated that, aside from the motor vehicle accident, he could only speculate as to the exact cause of Mrs. Bigda's mental condition. He testified that the accident was not the sole cause of her depression. He stated that Mrs. Bigda was psychologically impaired prior to the accident, but became disabled following the accident. He was not able to say whether Mrs. Bigda's post-accident symptoms were different from her pre-accident symptoms because he did not know her full pre-accident mental state.

Dr. Rose Giammarco, a neurologist, saw Mrs. Bigda in July 1994 and March 1995. In both attendances, Dr. Giammarco noted discrepancies in the examinations, and stated that an accurate assessment was undermined by a significant and excessive amount of pain behaviour and that there was no objective evidence of neurological deficit to explain Mrs. Bigda's degree of discomfort. Dr. Giammarco, nevertheless, stated that she did not doubt that Mrs. Bigda was in discomfort and diagnosed a soft tissue injury of the cervical and lumbar spine, chronic pain, anxiety and depression.

Rehabilitation and Ability to Return to Work

Dr. Jaskot originally released Mrs. Bigda for light duties on November 19, 1990 and for full duties 1-2 weeks later. The first rehabilitation specialist, Ms. Patricia Harris, reported in November 1990 that Mrs. Bigda felt she was ready to return to some form of employment and began a job search for Mrs. Bigda. Dr. Jaskot withdrew the release for work in mid-December 1990, pending a report from Dr. Killian. Ms. Harris resumed the job search following a verbal release for work from Dr. Killian on January 23, 1991. Lists of potential employers were compiled and provided to Mrs. Bigda. However, Ms. Harris eventually recommended that the rehabilitation file be closed in April 1991 due to Mrs. Bigda's total lack of motivation and participation in the programme. Ms. Harris testified that despite Mrs. Bigda's initial willingness to return to work, she rarely provided useful feedback and became disinterested in the process. Mrs. Bigda told Ms. Harris that she had not pursued any of the job possibilities because she was too ill.

Ms. Harris had prepared three lists of potential jobs for Mrs. Bigda (37 positions in total). They included cleaning jobs, counter-help at sandwich and donut shops, odd jobs requiring no experience and marketing positions where training was provided. Ms. Harris conceded on cross-examination that the jobs requiring English proficiency would not be appropriate for Mrs. Bigda without additional training. She also stated that most of the jobs would be inappropriate because of Mrs. Bigda's back problems.

The Traffic Injury Rehabilitation Program conducted a functional assessment of Mrs. Bigda in June 1992. Based on the range of motion tests, it was felt that Mrs. Bigda's functioning could not support a work trial at that time. Dr. Ghouse reported in July 1992 that no specific restrictions could be imposed and that Mrs. Bigda would have to "work within her pain tolerance." No further investigations or assistance were deemed appropriate at that point.

Attempts at rehabilitation occurred again in the fall of 1993 with Donna McMurdo of Nancy Hastings and Associates Inc. Ms. McMurdo noted Dr. Bhalla's June 1993 report that Mrs. Bigda required ongoing psychological assistance regarding chronic pain management and that once she was stabilized in this respect, she might benefit from a proactive therapy programme. Ms. McMurdo confirmed Dr. Jaskot's view that Mrs. Bigda continued to suffer from chronic pain, post-traumatic stress and probably fibromyalgia, and that she was not capable of returning to any form of employment. Physiatric and psychiatric examinations were conducted by Dr. Soric and Dr. Grossman, respectively, in October and December 1993. As a result of their reports, benefits to Mrs. Bigda were discontinued and no further rehabilitation occurred.

Dr. Giammarco reported in March 1995 that it was "quite unlikely" that Mrs. Bigda would return to work "based on the severity of her condition" and "her pain." However, she found no objective evidence of neurological deficit to explain the degree of discomfort which she felt was soft-tissue related. She stated that Mrs. Bigda's pain behaviour undermined an accurate assessment.

Demeanor and Credibility

Mrs. Bigda appeared to be a pleasant but somewhat sad person. She showed little emotion at the hearing. She sat in a listless and withdrawn manner. She demonstrated little insight into her own condition. However, she exhibited a good understanding of the questions put to her and there did not appear to be any confusion arising from the translation.

She had a fairly good recall of events, but denied having made a variety of documented statements. For example, she denied telling Dr. Jaskot and Ms. Harris that she was ready to return to some form of employment in the fall of 1990. She denied Ms. Harris' report that her daily activities included seeing her children off to school each day, making lunches, maintaining her house as long as it did not require any heavy lifting and walking to a nearby store for light grocery items. She denied Dr. McCracken's 1991 report that she attempted to do the heavier types of housework at home. She denied the 1992 report of Ms. Fran Morgan and Dr. S. W. Dermer of the Traffic Injury Rehabilitation Program that she was doing most of her household duties and using a stationary bicycle twice a day for one hour per day.

Mrs. Bigda's evidence concerning the motor vehicle accident was inconsistent. She testified that the car was stopped at a red light at the time of the accident, but the Application for Accident Benefits states that the car was travelling at approximately 10 kilometres per hour in fairly busy traffic when it was suddenly hit from behind. Mrs. Bigda attempted to explain that her brother-in-law had filled out the insurance forms with no input from herself. A 1993 report of Dr. Bhalla states that the car was "presumably...moving very slowly...[and] was hit in the rear by another vehicle which was also moving very slowly." Mrs. Bigda maintained that the car was a "write off," but Dr. Bhalla's report states that she was "unsure" about this. Mrs. Bigda testified that she did not seek medical treatment until a week after the accident, but Dr. Bhalla's report notes that she was taken to the Hamilton General Hospital after the accident was investigated, where she was examined and released. No records of such a visit were filed at the hearing.

Mrs. Bigda's evidence concerning her post-accident medical treatment contained some inconsistencies. Dr. Grossman's evidence was that Mrs. Bigda did not tell him about her pre- or post-accident psychiatric treatment or that she had undergone two operations following the accident. At first, Mrs. Bigda said she could not recall whether she told Dr. Grossman about previous psychiatric treatment, but then said she had not neglected to mention this (explaining that she would have no reason not to tell this to Dr. Grossman). She testified that Dr. Bhalla recommended the use of a cane in August 1993, but her brother-in-law, Mr. Kasek, testified that it was, in fact, Mr. and Mrs. Bigda's idea to use a cane. Dr. Bhalla's report notes that Mr. Kasek said Mrs. Bigda wanted a cane and that Dr. Bhalla felt that this was a good idea.

Both Dr. Giammarco and Dr. Bhalla reported that Mrs. Bigda was, in fact, capable of performing certain physical movements during examination despite her statements to the contrary.

In my view, these denials and inconsistencies raise serious questions about Mrs. Bigda's credibility. They undermine her assertion that she suffered from virtually continuous, disabling pain from the time of the accident. Counsel for Mrs. Bigda attempted to explain some of the discrepancies on the basis of poor translation. I reject this. Aside from the June 1990 report from Joseph Brant Hospital concerning Mrs. Bigda's first panic attack (where no translator was present) and the specific concern expressed by Ms. McMurdo in her September 2, 1993 report, the evidence establishes that the translation of discussions with Mrs. Bigda was adequate throughout. And, as indicated previously, there was no suggestion at the hearing that Mrs. Bigda had trouble communicating through an interpreter.

Therefore, where there is an inconsistency between Mrs. Bigda's testimony and a written entry, I will prefer the written entry.

Mrs. Bigda's Entitlement

On the basis of all of the evidence, I find that Mrs. Bigda has not discharged the onus on her to demonstrate, on a balance of probabilities, that the motor vehicle accident was a significant contributing factor to her inability to return to her previous occupation or a reasonably suitable alternative.

Mrs. Bigda was not working at the time of the accident. She had suffered two panic attacks approximately two weeks earlier. There is a rehabilitation record that the head housekeeper at the Hotel Strata felt Mrs. Bigda had not been a dependable employee.

Mrs. Bigda's emotional condition just prior to the accident is unclear. Well after the accident, her family doctor reported that she had improved dramatically after the panic attacks and was expected to return to work the day following the accident. Although the family's evidence about the details of Mrs. Bigda's return to work was inconsistent, a rehabilitation note dated June 23, 1992, seems to confirm that Mrs. Bigda was due to return to work the day after the motor vehicle accident.

However, there is no evidence from Dr. Dziurdzy, the psychiatrist who was treating Mrs. Bigda just prior to the accident, as to whether she was medically able to return to work. On July 8, 1990 (five days before the accident), Dr. Dziurdzy diagnosed Mrs. Bigda as suffering from a major depression - panic disorder. Then, on July 12, 1990 (the day before the accident), in what were introduced as his clinical notes, Dr. Dziurdzy diagnoses "depression," increases Mrs. Bigda's medication, and notes "she not want hospital [sic]." On July 17, 1990 (four days after the accident), Dr. Dziurdzy notes her as "starting to improve," "able to laugh" and "maybe return to work next week." Mrs. Bigda testified that Dr. Dziurdzy told her she could return to work prior to the accident, but in her examination for discovery in a parallel tort action, she said that Dr. Dziurdzy told her nothing about a return to work. Dr. McCracken also noted that, when asked, Mrs. Bigda became very vague about the duration of her pre-existing depression.

In my view, Mrs. Bigda appeared still to be suffering the effects of the panic attacks when the accident happened. I am unable to find that she would have been able to return to work had the motor vehicle accident not occurred.

The circumstances of the accident are equally unclear. No documentary evidence of the property damage to the car was tendered and Mrs. Bigda's evidence of whether the car was a "write off is inconsistent. It has not been established whether the car was stopped or moving slowly at the time of the accident. Mrs. Bigda may have been examined at the scene of the accident and at the Hamilton General Hospital after the accident, but no records were filed regarding this. I am, therefore, unable to conclude that the accident involved a significant impact. I find it was likely very minor.

I further do not accept Mrs. Bigda's evidence concerning the nature and extent of her post-accident disability. Despite her evidence to the contrary, Mrs. Bigda is noted by several individuals as being able to perform a variety of household tasks in the two years following the accident.

The Traffic Injury Rehabilitation Program terminated its services in July 1992 on the basis that no further intervention would be of benefit to Mrs. Bigda. Dr. Dermer of the Program was uncertain as to whether Mrs. Bigda was permanently disabled. At some point in 1992, Mrs. Bigda's husband was laid off from work. Both Dr. Dermer and Dr. Bhalla identify Mr. Bigda's unemployment as having a considerable impact on Mrs. Bigda's recovery. Mrs. Bigda also began to experience a recurrence of her menstrual problems, became anaemic and had to undergo two surgeries in mid-1993. Mrs. Bigda suggested that she experienced back pain as a result of her menstrual problems and that her back pain worsened after the hysterectomy. She began using a cane at this point, when she began having trouble bending over and walking. I accept the written report of Dr. Lynes in 1993 that, according to Mrs. Bigda, she had been experiencing severe low back pain with her periods and had been having prolonged painful periods for approximately a year. She had also experienced similar problems prior to the motor vehicle accident. Based on this evidence, I am unable to accept counsel's suggestion that it was merely a coincidence that Mrs. Bigda's symptoms worsened at the time of her menstrual problems and hysterectomy. In my view, these must be considered a contributing factor to any continuing disability she suffered.

Mrs. Bigda was seen by Dr. Bhalla in June 1993. He noted that both Mrs. Bigda and her husband had been off work since the accident, "in spite of the fact that the impact of the accident was so low." He also noted the considerable stress Mrs. Bigda was experiencing due to her husband's unemployment. He noted that she had gained a significant amount of weight since the previous summer and had not done much that year because of her recent surgeries. Dr. Bhalla was unable to conduct a full assessment of Mrs. Bigda's physical abilities because of her pain behaviour. He also noted that Mrs. Bigda could perform certain movements with her left shoulder, arm and leg, when her attention was diverted. Dr. Bhalla did not have any x-ray studies, but stated that he understood that these had been done in the past and that no gross abnormality had been noted. Despite these difficulties, Dr. Bhalla concluded that Mrs. Bigda suffered from soft tissue injuries to the cervical and lumbar spine related to the motor vehicle accident and chronic pain behaviour.

Mrs. Bigda was seen by Dr. Giammarco in 1994 and 1995. She does not refer to x-ray results. She does not appear to have had the report of Dr. McCracken. On both occasions, despite an inability to conduct a proper assessment due to Mrs. Bigda's pain behaviour, Dr. Giammarco diagnosed soft-tissue injuries to the cervical and lumbar spine and chronic pain syndrome.

Mrs. Bigda was seen by Dr. McCracken in August 1991. He reviewed x-rays taken one month post-accident and identified pre-existing degenerative disease in the cervical spine. He also concluded on the basis of "reasonable medical scientific assumption" that Mrs. Bigda probably had degenerative disease in the thoracic and lumbar spine as well, although he did not have x-rays of these two regions. He identified Mrs. Bigda's pre-existing degenerative disease, overweight condition, prolonged use of medication and pre-existing emotional depression and associated non-organic psychogenic components as significant contributing factors in Mrs. Bigda's ongoing disability. He could not identify any disability related to the after-effects of the motor vehicle accident.

At the suggestion of Dr. Ciok, a physician Mrs. Bigda saw in February 1994 concerning stomach pain and shortness of breath, Mrs. Bigda had a barium meal test. The test indicated that Mrs. Bigda had extensive severe multi-level thoracic disc degeneration or possibly a seronegative arthropathy. Mrs. Bigda's family doctor, Dr. Jaskot, notes her low-pelvic and mid-thoracic pain, dizzy spells and difficulty walking and getting up at that time. He notes the barium meal as suggesting degenerative changes in the thoracic spine. This would appear to support Dr. McCracken's view concerning the condition of Mrs. Bigda's thoracic spine.

I find Dr. McCracken's report more helpful than those of Dr. Bhalla and Dr. Giammarco. The latter two physicians did not have any x-rays before them and reached many of their conclusions on the basis of Mrs. Bigda's subjective complaints of pain and questionable inability to perform requested physical tests. Dr. Giammarco does not appear to have considered the barium meal results in her assessment of Mrs. Bigda. Neither Dr. Bhalla nor Dr. Giammarco discussed the significance of Mrs. Bigda's pre-existing medical problems in relation to whether the motor vehicle accident caused or aggravated her symptoms. Nor did they comment on the significance of her post-accident menstrual problems or surgeries. They also did not address the significance of Mrs. Bigda's weight gain, despite the view (as expressed by Dr. McCracken) that this could contribute to a "significant degree" to her clinical impairment.

Dr. Soric had a similar experience to Dr. Bhalla and Dr. Giammarco. However, in light of her inability to conduct a proper examination, she concluded that Mrs. Bigda's complaints were likely due to a psychological problem and not to any musculoskeletal pathology. Coupled with Dr. McCracken's observations, the other factors contributing to Mrs. Bigda's symptoms and her denial of the full extent of her abilities, I find Dr. Soric's conclusions more reasonable than those of Dr. Bhalla and Dr. Giammarco.

I do not find that the reports of Dr. Ghouse or Dr. Chong diminish the significance of Dr. McCracken's observations. Dr. Ghouse's diagnosis was based primarily on Mrs. Bigda's subjective complaints of pain, did not take into account x-ray results or reports at the time of significant activity in the home, and concluded that Mrs. Bigda merely had a "more diffuse picture, reminiscent of fibromyalgia." Dr. Chong did not have x-rays, suggested additional exercise and psychiatric assistance in improving her condition and conceded the complexity of Mrs. Bigda's condition. I do not find that Dr. Chong's 1993 observation of "absolute spasm" clarifies the nature, source or extent of Mrs. Bigda's disability. Nor does it minimize the significance of the other factors contributing to her condition at that time, including her denial of an ability to perform any meaningful tasks at all.

Despite the shortcomings in his evidence, Dr. Grossman is consistent with virtually every other physician in identifying extraneous psycho-social factors as significant contributors to Mrs. Bigda's ongoing disability. However, even if I were to discount Dr. Grossman's evidence, I would still be unable to find that Mrs. Bigda's ongoing disability is causally related to the motor vehicle accident.

Mrs. Bigda was still suffering the effects of two recent panic attacks at the time of the accident. She was involved in a minor collision. She was not truthful about her physical abilities post-accident. Her menstrual problems and operations, her husband's unemployment, the pre-existing degenerative disease in her spine and her overweight condition were all significant contributing factors to her ongoing disability. The medical evidence also does not establish that Mrs. Bigda's current medical condition is the result of an aggravation of her pre-existing physical or emotional problems. It is significant in this regard that Dr. Dziurdzy was not called to clarify the relationship between Mrs. Bigda's current condition and her pre- and post-accident emotional problems. I find the effect of the motor vehicle accident in the course and duration of her symptoms to be relatively insignificant. Accordingly, I find that any ongoing inability of Mrs. Bigda to return to gainful employment was not the result of the motor vehicle accident.

The evidence concerning the rehabilitation efforts made on behalf of Mrs. Bigda supports this conclusion. Despite indicating a readiness to return to work, Mrs. Bigda took no steps to pursue any of the positions identified by her rehabilitation caseworker. She was uninterested in the process and rarely provided useful input. She stated she was too ill, despite the fact that she was relatively active in her own home. A work-trial was not attempted based on Mrs. Bigda's subjective complaints of pain. Dr. Ghouse stated that she would have to "work within her pain tolerance," but nothing was attempted outside the home. Dr. Bhalla's and Dr. Giammarco's view that Mrs. Bigda was not capable of returning to work was based on her subjective complaints of pain, and both acknowledged the significant psychological barriers to rehabilitation. Therefore, even if it could be said that some of the positions identified by the caseworker were not appropriate for Mrs. Bigda because of her language difficulties and lack of training, Mrs. Bigda made no effort to determine whether any of the jobs were viable options for her. This further clouded the determination of the nature of Mrs. Bigda's disability and the extent to which her condition prevented her from returning to gainful employment.

I, therefore, conclude that Mrs. Bigda has not discharged the onus of showing that the motor vehicle accident was a significant contributing factor in preventing her from returning to her previous employment or a reasonably suitable alternative.

Expenses:

Despite my findings in this case, I am satisfied that this arbitration was brought in good faith and raised legitimate issues for determination. I, therefore, find that Mrs. Bigda is entitled to her reasonable expenses of the arbitration. Should the parties be unable to agree on the amount owing, they may apply to the Registrar for an assessment.

Order:

1. Mrs. Bigda is not entitled to further weekly income benefits.

2. The Insurer shall pay Mrs. Bigda's reasonable expenses of the arbitration.

October 23, 1996

Eban Bayefsky Arbitrator

Date

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. 2See, for example, Riley and Pilot Insurance Company (April 15, 1995), OIC A-007940, and Maas and State Farm Mutual Automobile Insurance Company (October 16, 1996), OIC A-015935. See also Walls v. Constellation Assurance Co. (1986), 1986 CanLII 7790 (ON HCJ), 17 C.C.L.I. 212 (H.C.J.) and Anderson v. Great-West Life Assurance Co. (1987), 1988 CanLII 10389 (ON HCJ), 30 C.C.L.I. 85 (H.C.J.).
3. 3(1978), 1978 CanLII 1353 (ON HCJ), 20 O.R. (2d) 37 (H.C.J.)
4. 4(1980), 1980 CanLII 1715 (ON CA), 29 O.R. (2d) 729 (Ont. C.A.)