Neutral Citation: 1996 ONICDRG 186

OIC A96-000413

ONTARIO INSURANCE COMMISSION

BETWEEN:

JANICE DAWSON

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Janice Dawson, was injured in a motor vehicle accident on May 18, 1994. She applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.¹ Weekly income replacement benefits were terminated by Kingsway on July 11, 1996. The parties were unable to resolve their disputes through mediation and Mrs. Dawson applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income replacement benefits for any part of the period July 11, 1995 to April 30, 1996?

Mrs. Dawson also claims interest on any amounts owing, a special award, and her expenses incurred in the hearing.

Result:

1. The Applicant is entitled to weekly income replacement benefits pursuant to section 7 of the Schedule from July 11, 1995 to December 4, 1995.

2. The Applicant is entitled to an award pursuant to section 282(10) of the Insurance Act in the amount of $2,000.

3. The Applicant is entitled to interest on these amounts pursuant to section 68 of the Schedule.

4. The Applicant is entitled to her expenses of the arbitration pursuant to section 282(11) of the Insurance Act.

Hearing:

The hearing was held in Hamilton, Ontario, on October 7 and 8, 1996.

Present at the Hearing:

Applicant:

Janice Dawson

Mrs. Dawson's Representative:

Allan Wynperle Barrister and Solicitor

Kingsway's Representative:

John W. Scott Barrister and Solicitor

Before:

William J. Renahan Arbitrator

The Applicant suffered soft tissue injuries to her neck, jaw and back, when the vehicle she was driving was struck from the rear while it was stationary. The force of the collision pushed Mrs. Dawson's vehicle ahead 15 to 20 feet. The accident occurred in Hamilton. Mrs. Dawson was shaken up and felt she could not drive 50 minutes to her home in Hagersville, so she drove to her mother-in-law's house. Her mother-in-law took her to the hospital where x-rays were taken. No bone damage was detected.

At the time of the accident Mrs. Dawson was 24-years-old. She worked days as a teller in a credit union and evenings as a hostess in her husband's karaoke business. She returned to work in the karaoke business the weekend after the accident. She returned to full-time work at the credit union two years after the accident on April 30, 1996. The Insurer terminated income replacement benefits on July 11, 1995 on the basis of a report by Dr. Thurlow, a chiropractor operating as a designated assessment centre.

The Law:

Under section 8 of the Schedule, Mrs. Dawson is entitled to a weekly income replacement benefit during the period that she suffers a substantial inability to perform the essential tasks of her employment.

Tasks of Employment:

Mrs. Dawson said that 80 per cent of her work at the credit union was processing deposits and withdrawals. She completed about 100 transactions a day and each transaction took three to 15 minutes. She could do the job sitting or standing. The work required concentration and precision when dealing with calculations and forms. She tried to work the week after the accident but only lasted a few hours due to her pain. She said that the pain and the medications she was on caused her to lose concentration and make mistakes.

The Insurer argued that Mrs. Dawson's continued involvement in her husband's karaoke business showed that she was not disabled. The couple entertained patrons of bars and taverns with a four-hour show. Mr. Dawson used video and audio equipment to play the background music to songs while the words to the songs and pictures were displayed on video screens. Patrons volunteered to sing the songs in synchronization with the music and words on the screen. Mrs. Dawson sang the first one or two songs and then encouraged patrons to get up on stage to sing. She circulated through the audience and took the names of the singers and the songs they wanted to sing. Between songs she acted as hostess and introduced the patrons. She also helped her husband set up and take down the equipment.

Mrs. Dawson said that before the accident she accompanied her husband four or five times a week to karaoke. After the accident she went three or four times a week. She said that her work as a karaoke hostess did not require the same concentration and mental abilities that were needed to work as a teller.

She and her husband usually left the bar between midnight and 1:00 a.m. It appears that at least half of their work was in Hamilton and that it took them about 50 minutes to drive home. She said that the Hamilton show ended at 12:30 a.m. and that she was home at 1:30 a.m. Before the accident she used to get up at 7:00 or 7:30 a.m. to go to work at the credit union in Hamilton.

Mrs. Dawson said that she did the karaoke work even though she was in pain because it lifted her spirits and did not require concentration. Two co-workers testified that they saw Mrs. Dawson perform at country fairs and that they did not notice any signs of pain. Investigators retained by the Insurer watched Mrs. Dawson work and reported that she appeared "somewhat stoic, lacking the usual vitality associated with being on a stage entertaining the audience."

Medical Evidence:

Mrs. Dawson's main complaint was headaches. She also had pain in her temples, jaw, and at the back of her head and neck. Her family doctor, Dr. Yar, prescribed medication and referred Mrs. Dawson to Dr. Bastien, a dental surgeon. Dr. Bastien diagnosed strained and torn ligaments in both temporomandibular joints and possible damage around the right temporomandibular condyle. Dr. Yar also referred Mrs. Dawson to Dr. Fawcett, a neurologist. When Mrs. Dawson did not respond to drug treatment, Dr. Fawcett referred Mrs. Dawson to Dr. Duke, another neurologist, for a second opinion and to Dr. Kaplan, a neuropsychologist. Dr. Duke administered steroid block injections. Dr. Kaplan tried to teach Mrs. Dawson techniques to deal with and overcome her pain.

The Insurer referred Mrs. Dawson to Dr. Robert Carbin, an orthopaedic surgeon, on May 5, 1995. He thought Mrs. Dawson should wean herself off medications, particularly Tylenol No. 3. He found that she was unfit to return to her pre-accident employment as a teller but expected that by starting part-time work she could resume full-time work within three months.

The Insurer also sent Mrs. Dawson to Dr. Robert Thurlow, a chiropractor operating as a designated assessment centre. The Insurer terminated income replacement benefits on July 11, 1995 on the basis of his report that she was not physically disabled.

On October 3, 1995, the caseworker appointed by the Insurer advised Dr. Bastien that Mrs. Dawson was staying up late and working as a karaoke hostess. It was not until then that anyone attached any significance to Mrs. Dawson's night work. The Insurer's adjuster knew from the outset that Mrs. Dawson was involved in the karaoke business, although he may not have known the extent of her involvement. Similarly, Dr. Kaplan knew that Mrs. Dawson was involved in the karaoke business, but thought it was only "once in a while." I am not satisfied that Mrs. Dawson deliberately tried to conceal or misrepresent the extent of her involvement in the business.

Dr. Bastien wrote that Mrs. Dawson's singing and staying up late interfered with her sleep patterns and the healing process, and was one of the reasons she was not improving. When Mrs. Dawson learned that Dr. Bastien forbade her from singing she phoned him in tears and pleaded that he allow her to sing. He would not. He said that she was not allowed to sing at all and that she should return to her work as a teller on a part-time basis and gradually increase her hours over the next two to three months.

Mrs. Dawson followed Dr. Bastien's directions not to sing for two or three months. She said that the next month, for the first time since the accident, she felt well for two days. She thought it might have been due to the steroid injections Dr. Duke administered in September.

Mrs. Dawson's consumption of prescribed drugs decreased significantly after October 3, 1995.

In September 1995 Dr. Kaplan had reported that Mrs. Dawson was heavily medicated. He wrote: "She believes she needs them all to cope but all of these medications have consequences in terms of her mental concentration abilities." On October 18, 1995 Dr. Duke wrote to Dr. Fawcett. "She is taking a frightening amount of medication..! think we should do everything possible to reduce her medication intake since I am sure at this point there is a strong element of analgesic rebound headache."

Mrs. Dawson took nine different drugs after the accident. She used mostly Tylenol No. 3's with codeine, Elavil and Flexeril. Tylenol No. 3 relieves pain. Commonly observed side effects include lightheadedness, dizziness and sedation. Elavil is an antidepressant. Flexeril is a muscle relaxant which may cause drowsiness or dizziness. In the year and half period from the time of the accident until October 1995, Mrs. Dawson's monthly consumption of prescription pills included about 112 Tylenol No. 3's with codeine, 66 Elavils and 41 Flexerils. After October 1995 her monthly consumption of pills decreased to about 28 Tylenol No. 3's, no Elavils and nine Flexerils.

Dr. Fawcett agreed that Mrs. Dawson's consumption of medications decreased significantly after October 1995.

Mrs. Dawson wanted to return to singing and she asked her physiotherapist, Barb Miles, when she could do so. Ms. Miles told Mrs. Dawson that she would know when the time was right. Mrs. Dawson did not discuss this further with Dr. Bastien. Instead, she returned to singing two or three months after Dr. Bastien told her to stop.

On January 3, 1996 Dr. Maillis performed a medical examination for the Insurer and reported:

To summarize, the picture I got today is probably quite different than the picture that other consultants have gotten a few months ago. It is unclear to me what is the origin of this significant improvement over the last few weeks including mouth opening, reduction in pain perception and very positive attitude to returning to work.

Analysis:

Dr. Kaplan found that Mrs. Dawson was sincere because she followed instructions and appeared to want help to get better. It appears this was the case except when it came to singing. Mrs. Dawson said that she loved singing and when Dr. Bastien told her to stop singing she pleaded with him to allow her to sing. When he did not, she asked her physiotherapist for permission to sing. In July 1995 Dr. Kaplan recorded that light and sound caused Mrs. Dawson pain. He testified that he would have encouraged Mrs. Dawson to go to bed earlier if he had known she was regularly staying out late at karaoke bars. Both Dr. Bastien and Dr. Duke reported that the large amount of analgesics she was taking caused "rebound headaches." Dr. Fawcett said that she would not want to sing karaoke in bars if she had headaches. It appears to me that Mrs. Dawson was in a cycle of taking medications to overcome her headaches so that she could sing, and that the singing and medications caused further headaches.

Mrs. Dawson's condition improved quickly after October 1995 when she followed Dr. Bastien's directions to abstain from singing and staying out late. She experienced her first pain-free days the next month. As well, she dramatically reduced her dependency on a "frightening amount of medication." At that time, Dr. Bastien was the only doctor who recognized the extent of Mrs. Dawson's karaoke activities. He thought that Mrs. Dawson aggravated her jaw problems by her singing and irregular sleep patterns. I find that Mrs. Dawson recovered from her headaches because she followed Dr. Bastien's advice to stop singing. This conclusion is confirmed by Dr. Kaplan's testimony that he would have encouraged Mrs. Dawson to go to bed earlier if he had known the extent of her involvement in her husband's karaoke business. It appears to me that Dr. Bastien's opinion as to when Mrs. Dawson could return to work is reliable because he understood what Mrs. Dawson needed to recover from her cycle of headaches and analgesic dependency. I therefore accept his opinion that on October 3, 1995 Mrs. Dawson should have been able to return to work on a part-time basis, gradually increasing over two or three months.

In assessing the date when Mrs. Dawson was no longer disabled from performing the essential tasks of her employment, I assume that if Mrs. Dawson had started to work part-time on October 3, 1995, as recommended by Dr. Bastien, the Insurer could have deducted a percentage of the net income she received from benefits otherwise payable. In an effort to balance out these deductions with Dr. Bastien's opinion that Mrs. Dawson should have increased to full-time work after two or three months, I find that Mrs. Dawson was disabled from performing her tasks as a teller up to December 4, 1995 on account of injuries she sustained in the motor vehicle accident of May 18, 1994. I find that any inability to perform the tasks of a teller after December 4, 1995 was caused by her continuing to perform in her husband's business contrary to Dr. Bastien's instructions.

Special Award:

Mrs. Dawson asked for a special award on the grounds that the designated assessment centre which the Insurer selected was not qualified to assess her impairments.

Section 282(10) of the Insurance Act allows an arbitrator to make a special award of up to 50 per cent of the amount outstanding where he finds the insurer has unreasonably withheld or delayed payments.

Section 64 of the Schedule sets out the rules the insurer shall follow before it stops payment of weekly benefits. Where an insured notifies the insurer that she wishes to be assessed at a designated assessment centre, the assessment shall be conducted at a designated assessment centre "authorized to assess impairments of the type sustained by the insured person." "Impairment" is defined in section 1 as "a loss or abnormality of psychological, physiological or anatomical structure or function." The person who conducts the assessment shall prepare a report and, pursuant to section 64(11), "if the report states that the insured person is no longer suffering from a disability resulting from the accident in respect of which the weekly benefits are paid, the insurer may stop paying benefits."[emphasis added] The insured person may dispute the stoppage of benefits in accordance with sections 279 to 283 of the Insurance Act. If the report states that the insured person continues to suffer from a disability, the insurer shall continue to pay benefits pending resolution of the dispute.

Section 64(11) of the Schedule gives the insurer the discretion to stop paying benefits where the report of the designated assessment centre states that the insured person is no longer suffering from a disability. Since the opinion on disability expressed in the report may have significant consequences for the parties, it is my view that in exercising its discretion, the insurer should consider the report's conclusion on disability in the context of the entire report. Where the insurer terminates benefits on the basis of a conclusion that is not supported by the balance of the report, the insurer may be subject to a special award.

Dr. Thurlow is a chiropractor acting as a designated assessment centre. In his report of July 18, 1995 he wrote that "Mrs. Dawson's temporomandibular problem is beyond my expertise, hence I did not perform an examination of the area." He then went on to conclude "Although her condition is chronic, I do not feel that she is physically disabled." I have found that Mrs. Dawson's temporomandibular problem was the cause of her ongoing disability and that she overcame that disability because she followed the advice of the doctor who treated her for that problem.

An Insurer can only terminate benefits under section 64 of the Schedule on the basis of a report of a designated assessment centre stating that the insured person no longer suffers from a disability resulting from the accident. The only report of a designated assessment centre was that of Dr. Thurlow. In my view, the Insurer acted unreasonably in terminating benefits on the basis of Dr. Thurlow's opinion that Mrs. Dawson was not "physically disabled" when Dr. Thurlow admitted that he was not qualified to comment upon one of the impairments about which Mrs. Dawson was complaining.

The Insurer paid income replacement benefits in the amount of $314.19 per week. Mrs. Dawson is entitled to further weekly income replacement benefits from July 11, 1995 to December 4, 1995. The total, without interest, is approximately $6,600.

Considering all the circumstances, including the amount outstanding, the conduct of the Insurer and the relatively few decisions on the role of the designated assessment centre, I find that a lump sum award under section 282(10) of the Insurance Act in the amount of $2,000 is appropriate.

Order:

1. The Applicant is entitled to weekly income replacement benefits pursuant to section 7 of the Schedule from July 11, 1995 to December 4, 1995.

2. The Applicant is entitled to an award pursuant to section 282(10) of the Insurance Act in the amount of $2,000.

3. The Applicant is entitled to interest on these amounts pursuant to section 68 of the Schedule.

4. The Applicant is entitled to her expenses of the arbitration pursuant to section 282(11) of the Insurance Act.

October 31, 1996

William J. Renahan Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after January 1, 1994, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.