Neutral Citation: 1996 ONICDRG 212

OIC A-011124

ONTARIO INSURANCE COMMISSION

BETWEEN:

JENNIFER SPENCER

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Jennifer Spencer, was injured in a motor vehicle accident on October 26, 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 May 29, 1994. The parties were unable to resolve their disputes through mediation and Mrs. Spencer 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 ongoing weekly income benefits after May 29, 1994, under section 12(5)(b) of the Schedule?

2. Is the Applicant entitled to a special award under section 282(10) of the Act?

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

Result:

1. The Applicant is entitled to ongoing weekly income benefits after May 29, 1994, plus interest.

2. The Applicant is entitled to a special award of $3,000 plus interest.

3. The Applicant is entitled to her expenses incurred in the proceeding.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on November 20, 21 and 22, 1995, before me, Nancy Makepeace, Arbitrator.

Present at the Hearing:

Applicant:

Jennifer Spencer

Mrs. Spencer's

Stanley Tessis

Representative:

Barrister and Solicitor

Dominion's

David Zuber

Representative:

Barrister and Solicitor

Dominion's

Theresa Less

Officer:

Claims Service Representative

Witnesses:

Jennifer Spencer, the Applicant

Sylvester Spencer, the Applicant's husband

Barb Smith, Claims Service Representative

Marg Timmons, Rehabilitation Consultant, Innovative Rehabilitation Inc. Ashmeela Khan, Occupational Therapist, Vocational Rehabilitation Associates Dr. S.E. Scherer, Psychologist, Vocational Rehabilitation Associates

Exhibits:

The Exhibits are set out in an Appendix to this decision.

The parties also referred to a number of decisions.

Background:

The Applicant, Jennifer Spencer, is 38 years old, married, and the mother of three children aged 13, 10 and 7. She lives in Barrie, Ontario. On October 26, 1990, the Applicant was driving with her three children when the family minivan was front-ended. The Applicant hurt her right knee and her chest and suffered neck and low back pain following the accident. Her knee, chest and neck problems have largely resolved, but she continues to complain of ongoing low back pain, which she describes as a constant burning pain sometimes radiating to her buttocks and thighs. The Applicant also complains of depression secondary to her chronic pain and disability.

At the time of the accident, the Applicant was in her third and final year of the Registered Nurse ("RN") program at Georgian College, and worked part-time as a Registered Nursing Assistant ("RNA") at Green Acres nursing home in Barrie. She has not returned to work or school since the accident. She claims that she cannot return to nursing because it involves heavy lifting, repetitive bending and prolonged standing, and cannot return to school because the final year involves prolonged sitting as well as clinical nursing activities. The Applicant submitted that her education, skills and experience are exclusively in nursing, and that the Insurer has failed to provide vocational rehabilitation to help her find alternative work.

The Insurer submitted that there is no physical reason why the Applicant cannot return to nursing or another suitable occupation. The Insurer claimed that the Applicant's ongoing low-back problems are related to pre-existing problems rather than the accident. The Insurer also took the position that the Applicant's depression is related to her marital problems, not the accident. Finally, the Insurer questions the Applicant's motivation to return to work.

The Test for Entitlement to Weekly Benefits:

Under section 12 of the Schedule, an insured person is entitled to weekly income benefits while she is substantially unable to perform the essential tasks of her pre-accident employment or occupation. After 156 weeks - November 2, 1993 in this case - the test for entitlement becomes more stringent. The insured person must establish that her accident-related injuries continuously prevent her from engaging in any employment or occupation for which she is reasonably suited by education, training or experience.

The Applicant submitted that because of the Insurer's payment of weekly benefits until May 29, 1994 - about seven months after the stricter "post-156 week test" began to apply, - the onus of proof has shifted to the Insurer, which must prove that the Applicant's injuries do not prevent her from working. I do not find it necessary to determine this issue. I find, for the reasons set out below, that even if the onus remains on the Applicant throughout, she has succeeded in meeting it.

Evidence and Findings:

History and Treatment

The Applicant attended Royal Victoria Hospital immediately after the accident of October 25, 1990, complaining of neck, chest and knee pain. Neck x-rays were negative, and she was discharged home with Tylenol 3.

The Applicant saw her family doctor, Dr. William Chan, the day after the accident. Dr. Chan diagnosed cervical and lumbar sprain, right knee contusion and chest wall contusion. The Applicant returned to Dr. Chan's office on November 9, 1990. Lumbar x-rays showed only "minimal scoliosis ... convex to the left." Dr. Chan prescribed NSAID (Naprosyn) and Cytotec. When the Applicant failed to improve by November 17, Dr. Chan referred her for physiotherapy. By December 8, 1990 - about five weeks after the accident - Dr. Chan found the Applicant only 20% improved, and he could not predict a return-to-work date.

On January 18, 1991, the Applicant was still complaining about low back and right knee pain, and Dr. Chan found a loose body in her right knee. Dr. Chan referred the Applicant to Dr. Barry Malcolm, an orthopaedic surgeon. As well as the knee problem, Dr. Malcolm diagnosed a mild myofascial cervical strain and a more severe myofascial lumbar strain. He expected that the Applicant's symptoms should resolve within 9-12 months of the accident. He also recommended that the Applicant switch from passive to active rehabilitation for her low back problem.

In accordance with Dr. Malcolm's recommendation, Dr. Chan encouraged the Applicant to do home exercises. The Applicant began attending a new physiotherapy clinic in Barrie, where she was treated with active as well as passive therapies. Dr. Chan also referred the Applicant to another orthopaedic surgeon, Dr. I. Grosfield, who removed the loose body from the Applicant's knee in July 1991.

Dr. Chan's assessment of the Applicant's condition in mid-1991 also indicated psychological difficulties:

On a purely physical basis, she has been making a slow recovery with occasional flare ups of her neck, low back and right knee pain. Having said that, one is of the opinion that this accident and its sequelae have been profound and that anxiety and tension together with physical pain have caused Mrs. Spencer to be more irritable during the recovery stage.

The Applicant has continued to visit Dr. Chan regularly. Although her neck and knee problems have substantially resolved, there has been little or no improvement in her low back symptoms. On July 25, 1994, Dr. Chan still found that the Applicant's low back was tender and her straight leg raising test was positive at 60 degrees bilaterally. He reported that the Applicant had had no success with active or passive physiotherapy. In October 1994, Dr. Chan felt that the Applicant could not "do any heavy lifting, repetitive bending, prolonged walking, standing, or sitting." Dr. Chan recommended "some type of desk job in which she is allowed to have occasional walk, sit, stretch and rest as tolerated to start with and then she could slowly and gradually increase her work load as tolerated."

Medical-legal Reports

In early 1991, the Insurer retained Innovative Rehabilitation Inc. to manage the Applicant's case. Marg Timmons, a Rehabilitation Consultant with Innovative Rehabilitation, met with Dr. Chan, who told her that "perhaps she [the Applicant] should be busier" but deferred the question of a return-to-work date to Dr. Malcolm, to whom he had referred the Applicant. In his completed questionnaire for Ms. Timmons, Dr. Malcolm confirmed his recommendation of active rehabilitation. He made the following comments about the Applicant's ability to return to nursing:

• I would try to dovetail - active rehab with return to work part-time, modified (no lifting, bending, etc.).

• I think decision re permanent change in work should depend upon outcome of above.

• active participation by patient is essential. [emphasis in original]

Dr. Malcolm was unable to assess the Applicant's ability to return to nursing school that fall.

The Insurer then referred the Applicant to Dr. Thomas Brandl, another orthopaedic surgeon. He examined the Applicant in June 1991. Dr. Brandl reported "a marked scarcity of clinical findings" and "a larger element of subjective pain." He felt that the Applicant could return to her job as an RNA. He recommended a psychological assessment because he felt that the Applicant "considers herself largely handicapped."

When Dr. Malcolm examined the Applicant again on November 7, 1991 at the request of her counsel, his opinion was substantially unchanged. He felt that the Applicant could return to RNA work after a reconditioning program if she avoided repetitive bending. He now felt that the Applicant's depression was a more significant factor than her physical problems, and he recommended that the Applicant receive psychiatric support. Dr. Malcolm examined the Applicant again on June 3, 1993, and gave substantially the same opinion. He felt that the Applicant could return to modified work - no sitting or standing longer than an hour, no lifting more than 10 pounds. However, he said that the Applicant's pain-behaviours prevented him from getting a reliable assessment of her functional capacity, and therefore he based his assessment on his experience with similar injuries.

In early 1992, the Applicant was examined at the Canadian Back Institute ("CBI") at the request of her counsel. Physiotherapist Gareth Sneath felt that the Applicant "is suffering from a chronic pain syndrome, coupled with generalized deconditioning and moderate lumbar stiffness." Mr. Sneath recommended a return to modified duties as soon as possible in order to improve the Applicant's confidence and exercise tolerance. No functional assessment was done at this time.

At Dr. Malcolm's suggestion, the Insurer sent the Applicant for a Functional Abilities Evaluation at Columbia Health Care on June 30, 1993. The assessors, an occupational therapist and a physiotherapist, reported that the Applicant demonstrated "minimal endurance and minimal tolerance to work activity." She appeared to be "restricted at the frequent level in sitting, standing, walking, pushing, pulling, lifting, carrying and bended reach" and she demonstrated strength at only the sedentary level (10-12 pounds). However, the assessors felt that these results were not reliable, because the Applicant was very pain-focused, unmotivated, uncooperative, and angry, and refused to do certain tests. When Dr. Malcolm was asked to comment on these results, he reiterated that while from a physical point of view, the Applicant should be able to do the light work suggested by the Insurer, "the subjective impairment in disability is so overwhelming that her perception is that she will be unable to return to any of these forms of gainful employment."

Except for the comments about motivation, Columbia's conclusions are substantially consistent with those of occupational therapist Ashmeela Khan, of Vocational Rehabilitation Associates, who conducted a Functional Abilities Evaluation of the Applicant at the request of her counsel in August 1995. Ms. Khan felt that the Applicant showed "poor endurance, strength and flexibility to manage an average eight-hour workday," and her ability to do even part-time work was "questionable." Ms. Khan noted "pain and self-limiting behaviours," unreliable and inconsistent results, poor ability to follow instructions, "poor effective pain management coping skills and poor body-mechanic awareness." Ms. Khan did not believe the Applicant could return to work in any capacity. She concluded:

Her restrictions appear to be due in part to psycho-social factors and, until these are addressed, it is highly unlikely that she would be successful or productive in the employment field.

Dr. S. Scherer, a psychologist specializing in rehabilitation, assessed the Applicant at her lawyer's request in August and September 1995. It was his opinion that:

At the present time she is not employable on a steady, full-time basis and would likely encounter significant difficulties in meeting the stamina demands of sedentary, part-time steady work. She may however be able to achieve reentry on a steady part-time basis in the intermediate to long term, subject to a carefully constructed program of vocational rehabilitation.

Dr. Scherer felt that:

psychosocial factors play a role in this case, as in a great many where one has had need to give up well paid skilled employment and where persistent pain and physical restriction has been an every day experience.

Reasons:

Disability after May 29, 1994

The uncontradicted testimony of the Applicant and her husband indicates that the accident was of moderate severity. The impact was serious enough to require the Applicant to have knee surgery, and the Applicant testified that her daughter injured her nose in the accident and will need surgery when she is older. Mr. Spencer's uncontroverted testimony was that repairs of more than $16,000 were needed on the minivan. I find that an insured person is more likely to have serious injuries after a severe impact than after a minor one.

The Applicant began complaining about low back pain on the day after the accident, when she saw her family doctor. Her complaints about her low back problems have been continuous and consistent since then. She complains that prolonged sitting or standing, repetitive bending or lifting aggravate her back ache, which sometimes radiates to her buttocks and thighs. She has never complained of pain radiating below her knees, and she frankly concedes that her neck, chest and knee complaints are no longer disabling.

The Applicant has clearly not put forward her best effort on functional assessment. Ms. Khan testified that the Applicant appeared to be pain-focused and "despondent." Ms. Khan did not believe the Applicant was "faking." She stated that the Applicant now has a "patient personality" rather than a "worker personality," despite her strong work history. Ms. Khan described the Applicant as typical of the person who, once disabled from work, loses her whole coping mechanism and "falls apart." According to Ms. Khan, such people need psychiatric and vocational assistance to return to the workforce. Ms. Khan impressed me as a knowledgeable, perceptive and impartial witness, and her impression of the Applicant as "despondent" is consistent with the reports of the other assessors who have examined her.

There is no question that well before benefits were terminated in May 1994, the Applicant showed little or no objective sign of lumbar impairment - no consistent reduction in range of motion, palpable spasm, or neurological deficit. Within months of the accident, it became clear to all the experts who assessed her that the Applicant's disability was being prolonged by psychological factors, especially depression. This does not, however, end the matter. The Schedule provides that an insured person is entitled to benefits if she sustains "physical, psychological or mental injury as a result of an accident." Depression is a common consequence of pain and disability, and it is well known that psychological factors may impede recovery from an accident. In this case, the Applicant's medical records clearly indicate that the summer of 1991 was critical for her. It was at that time that her employer's doctor refused to certify her as fit for work, and the Applicant then realized she would not be able to return to nursing school either.

The Insurer submitted that the Applicant's depression relates to problems unrelated to the motor vehicle accident. The clinical notes of Dr. Alan MacLeod, a psychologist who saw the Applicant in 1995, reflect very serious marital problems. In cross-examination, Ms. Khan agreed that the Applicant's marriage appeared to be "close to a crisis" and that these problems represented a "very important" psychosocial factor. Ms. Khan was unable to assess how important these factors were compared to the Applicant's accident-related psychosocial stresses. I am satisfied that the Applicant's accident-related pain and disability remain the main reason for her depression. The Applicant's pre-accident medical and employment records make no reference to disabling depression or psychosocial problems. The medical reports show, and I accept, that the Applicant became depressed as she realized that her symptoms were becoming chronic and she would not be able to return to work or nursing school in the near future. In addition, the Applicant appears not to have found her dealings with Innovative Rehabilitation to be helpful.

Pre-accident Injuries

On December 7, 1987, about three years before the motor vehicle accident, the Applicant felt a sudden onset of low back pain while bending over a bed at work. She received workers' compensation benefits for several months. The Applicant testified that she returned to full-time modified duties "after about three months," returned to regular duties shortly thereafter, and lost no further work-time as a result of this incident. In April 1988, Dr. Michael Kugler, an orthopaedic surgeon, reported to the Workers' Compensation Board that the Applicant was still unable to return to work and continued to attend physiotherapy twice a week. Dr. Kugler diagnosed "a mechanical lumbar segmental strain of one or other of her lowest lumbar disk segments." He felt she could go back to work if she avoided repetitive bending and lifting over 20 pounds. In his initial Form 4 report to the Insurer following the October 25, 1990 motor vehicle accident, Dr. William L. Chan, the Applicant's family doctor, noted that he had treated the Applicant for "lumbar sprain three years ago. WCB case. Complete recovered [sic] prior to this MVA."

The Applicant was also injured in a motor vehicle accident in September 1989. She testified that she was off work for about six weeks with low back pain but returned to work without restrictions. Dr. Chan reported that the Applicant was still off work with low back pain on April 16, 1990, and he recommended that she return to work on April 19. Dr. R. Peter Welsh, an orthopaedic surgeon, prepared a medical-legal report for the Applicant's former lawyer in June 1990 (about 4½ months before the motor vehicle accident at issue in this proceeding). Dr. Welsh diagnosed a moderate facet strain to the Applicant's low back. He noted that the Applicant had returned to school and work, and he felt that her symptoms would be self-limiting.

Weekly benefits are provided where an insured person sustains disabling physical, mental or psychological injury "as a result of" a motor vehicle accident. Arbitrators have said many times that an insured person need not prove that the motor vehicle accident was the only cause of her disability. It is sufficient that the accident made a significant or material contribution to her problems. In this case, the Applicant had two episodes of low back pain significant enough to disable her for several months. I am troubled that the Applicant underestimated how long she was disabled after her two prior injuries. However, the Applicant completed her second year of nursing school in the spring of 1990, and continued to perform her regular work as a nurses' aide at the time of the accident. On balance, I am satisfied that any low back symptoms the Applicant suffered before the accident were not disabling, and that the Applicant's subsequent low back symptoms "resulted from" the accident.

Job Duties of an RNA

In February 1991, Ms. M. Parsons, the Applicant's former supervisor at the Green Acres nursing home, told Ms. Timmons that the nursing home would require an independent assessment of the Applicant before accepting her back at work. Ms. Parsons described the physical demands of the job as follows (from Ms. Timmons' confirmation letter):

Ms. Spencer's duties included care of the senior residents encompassing such things as: skin care treatments, administering medications, charting and paper work. Although her physical demands were not continuous, Ms. Spencer was involved in a significant amount of turning, rolling and assisting patients to stand. All lifting was done with assistance. You explained that the physical demands on the staff were quite high due to the fact that the majority of your residents required total care. Subsequently, it was mandatory for all staff to receive stress testing prior to employment, to determine if they were fit for the physical demands of the job. You also mentioned that since many residents suffered from Alzheimer's Disease there was the hazard of violence from residents. Again, your staff had to be physically able to deal with an incident of this nature.

The assessment required by the nursing home was done on July 2, 1991 by Dr. Brenda Woolley, a family doctor. Dr. Woolley found that the Applicant had limited range of movement and significant tenderness in her lower back. Dr. Woolley did not think the Applicant was ready to return to work as an RNA and felt that the Applicant would not be able to return to school in the fall either, because the program would require the Applicant to perform many physical nursing tasks. The Applicant was finally terminated by the nursing home in February 1992.

There is no evidence that the Applicant's subjective complaints have improved since the fall of 1991. I have no difficulty accepting that the Applicant's low back complaints prevent her from returning to nursing school or her pre-accident job as an RNA, which involve transferring and lifting patients, as well as repetitive bending and prolonged standing.

Availability of light-duty nursing work and other suitable work

In Spicer and State Farm Mutual Automobile Insurance Company (May 24, 1995), OIC A-010158, Arbitrator David Draper set out a number of principles or guidelines to be applied in determining entitlement to benefits after 156 weeks:

• The focus of the inquiry must be on the applicant's injuries, not the availability of jobs.

• The injures must prevent the applicant from performing the duties of the alternative work, not simply make the job more difficult, or make the applicant somewhat less productive. However, the test is not limited to whether the applicant is physically capable of performing each component task of the job without risking further injury. The question is whether the applicant is substantially able to do the alternative job, considered as a whole, including reasonable hours and productivity.

• The range of alternative employment that may be considered depends on the applicant's background. It may include jobs that are different from the work that he or she was doing at the time of the accident, but only if they are reasonably suitable or appropriate for the applicant. If the job is substantially different in nature, status or remuneration it may not be an appropriate alternative.

In Reid and Continental Insurance Company (July 27, 1995), OIC A-006022, Arbitrator Fred Sampliner made the following comments, with which I agree:

...section 12(5) eligibility is initially determined through a consideration of the insured's disability. However, in my opinion, the disability cannot be seen in a vacuum, but should be viewed in the context of the insured's competitiveness in the existing marketplace.

In this case, the Insurer's rehabilitation consultants appear to have disregarded Ms. Parsons' job description and the opinions of Drs. Woolley, Chan and Malcolm in concluding that suitable light-duty RNA jobs were available in the Barrie area. Ms. Timmons testified that when she contacted the nine prospective employers identified in her March 1992 report, she did not specify what she meant by "light duty." Nevertheless, three of the nursing homes stated that heavy lifting - presumably of patients - was "required" or "may be required." Ms. Timmons had heard from her sister that the Victorian Order of Nurses ("VON") had light-duty work available. However, when contacted, they would only say that they were "open to discussion" of light duty work. Four other prospective employers indicated that light duty work "may" be available and the job applicant should state restrictions on the application. The remaining prospective employer seems to have provided no information about the availability of light duty work.

The labour market survey conducted by Ms. Brooks in February 1994 produced similar results. Most RNA positions, including a casual RNA position advertised at the Canada Employment Centre, involved caring for elderly or ill people in their own homes and required heavy lifting. Some employers indicated that they would make light duty work available for existing staff only. Most indicated that employee turnover was low.

In October 1995, the Insurer obtained an Employability Assessment on the Applicant from Crawford & Company. The assessors identified a number of sedentary or light occupations which appear be within the Applicant’s physical restrictions - no prolonged sitting or standing, no repetitive bending, no repetitive lifting, and no lifting over 10 kg. The occupations were: Hospital Admitting Clerk, Ward Clerk (Medical), Clinical Assistant (Medical), Social Services Assistant, Receptionist and Pharmacy Aide. Crawford then conducted a labour market survey by contacting 15 employers, reviewing classified ads in the Barrie Examiner, and surveying job openings at the Canada Employment Centre. The positions identified fell into two broad categories: clerical or reception work, and medical or social services work. The Applicant has no training or experience as a clerk or receptionist, and in any event she has repeatedly stated that she is not interested in office work. Her vocational interests are in working with people in a medical or social services capacity. All of the positions identified by Crawford involving a medical or social services component require training or experience the Applicant does not have. The Insurer did not offer the required training.

The Applicant's Commitment to Nursing

The Applicant's commitment to the nursing profession was evident in her testimony before me and her comments to the doctors and rehabilitation assessors who examined her. She started nursing school in her native Antigua, but left the program in 1978 to emigrate to Canada to join her husband. After arriving in Canada, the Applicant worked in a cosmetics factory for a short time, then got a job as a Nurses Aide in a Scarborough nursing home. She continued in that job while qualifying as an RNA at Humber College. Once she completed her RNA qualification in 1983, the Applicant began working as an RNA in two Toronto hospitals. In 1985, the family moved to Barrie, where Mr. Spencer, the Applicant's husband, had got a job in an auto plant.

Except for maternity leaves and the two disability lay-offs discussed above, the Applicant has worked steadily as an RNA since qualifying in 1983. Moreover, the Applicant's pre-accident employer rated her as "good" or "excellent" on all twelve performance criteria in a vocational assessment she gave Marg Timmons, the Rehabilitation consultant at Innovative Rehabilitation Inc. The Applicant's work history establishes that she was able and strongly motivated to work before the accident.

Given the Applicant's work and education history, I am troubled that Ms. Timmons interpreted the Applicant's determination to return to nursing, rather than consider alternative careers, as a sign that she was not motivated to return to work. This appears even in Ms. Timmons' initial report of February 4, 1991 - only three months after the accident. In March or April 1991, Ms. Timmons heard that the Barrie branch of the VON had decided to hire RNA's. According to Ms. Timmons, the Applicant's response was to indicate again that she intended to return to school and the Green Acres nursing home, and therefore did not need vocational assistance. Ms. Timmons testified that her job was to help the Applicant get back to work, and that if she went back to school, this would have to be "on her own time". Her skepticism about the Applicant's nursing program came through in her February 4, 1991 report.² No effort was made to get the Applicant back to school, or to investigate accommodations which might allow the Applicant to finish the RN program.

I find that the Applicant had good reason, through the spring of 1991, to believe that she could and would return to nursing school as well as part-time RNA work. I suspect that if the Applicant had been able to complete the RN program, a greater range of long-term light-duty jobs would have been available to her. In my view, the Applicant was entitled to rehabilitation assistance aimed at allowing her to complete the RN program in which she had already invested two years. Whether returning to that program remains a reasonable option for her some years later was not an issue before me in this proceeding.

The Applicant testified that she had applied for a number of jobs in the Barrie area, including a job at the Post Office. In cross-examination, she admitted that had a job been offered, she would have accepted it if it were within her physical abilities. She said she was "desperate" and "willing to do anything." The Insurer submitted that the Applicant's response shows that a wide range of jobs, including post office jobs, are suitable and within her physical capabilities. In my view, the fact that an insured person applies for a particular job does not, by itself, prove that she is able to do the job or that the job is suitable for her. An insured person’s job search may reflect financial desperation or her response to pressures imposed by an insurer or rehabilitation caseworker. In this case, the Applicant’s job search seems to have been unfocussed and sporadic. I am not convinced that it was tailored to her functional capacities or her job skills.

Rehabilitation

Depression can rob an otherwise-motivated insured person of her ability to take responsibility for her rehabilitation. This does not relieve the insured of her responsibility, but it means that an insurer must be pro-active in pursuing rehabilitation in cooperation with the insured.

Unfortunately, Ms. Timmons' involvement did not assist the Applicant. Ms. Timmons' reports indicate that there was conflict between the two from the outset. Based on my review of Ms. Timmons' reports and the oral evidence of the Applicant and Ms. Timmons, I find that the conflict resulted in part from Ms. Timmons failure to consider the Applicant’s strong work history, the physical demands of her pre-accident occupation as a nurses aide, or her plan to complete the RN program. I also find that certain questions which Ms. Timmons considered routine and natural, were intrusive and offensive to the Applicant. For example, the Applicant was offended when on their first meeting, Ms. Timmons asked whether she rented or owned her home and how much it was worth. Despite Ms. Timmons explanation that she asked these questions to determine the Applicant’s financial needs, I find that these questions might reasonably be considered intrusive because they have only a tenuous relationship to the Applicant’s medical or vocational status. In any event, Ms. Timmons conceded that the Applicant gave her enough information to begin her work.

The Applicant was also upset when Ms. Timmons used photocopied release forms to obtain information from Dr. Malcolm and Ms. Finn without the Applicant’s consent, despite Ms. Timmons prior reassurance that they would use originals only. Ms. Timmons apologized for this error and testified that she "felt terrible." Ms. Timmons frankly conceded that the Applicant continued to provide all the releases she requested, and consented to use of the photocopies sent to Dr. Malcolm and Ms. Finn. Unfortunately, this incident deepened the mistrust between the Applicant and Ms. Timmons.

Again, Ms. Timmons reported that when she visited the Applicant on April 29, 1991, the Applicant preferred to meet on her front porch rather than inside the house. I draw little from this other than that the Applicant and Ms. Timmons were unfortunately unable to build a relationship of trust.

Ms. Timmons reported that the Applicant accused her of being "deceitful" and "discriminatory" when she requested, on behalf of the Insurer, that the Applicant attend for an Insurer Medical Examination ("IME") with Dr. Brandl. I find that the relationship between the Applicant and Ms. Timmons had broken down completely by this time. I find that the Applicant had reason to think that Ms. Timmons' main role was not to provide rehabilitation assistance but to help the Insurer investigate her claim. In any event, the Applicant attended the IME, and there is no suggestion that she failed to cooperate with the examination or to provide needed information.

After May 1991, Ms. Timmons had no further contact with the Applicant and took no action on the file until March 1992, when at the Insurer's request, she enquired into available RNA jobs in the Barrie area. The rehabilitation file was then taken over by Susan Brooks, RN, also of Innovative Rehabilitation, who prepared a labour market survey in early 1994. Another labour market survey was conducted by Crawford and Company in October 1995. The Insurer appears to have offered no other vocational rehabilitation assistance.

Conclusion:

I am satisfied that chronic pain resulting from the accident continues to prevent the Applicant from engaging in suitable work, and accordingly that the Applicant is entitled to ongoing weekly income benefits after May 29, 1994. However, I do not see the Applicant's entitlement continuing indefinitely. Dr. Scherer made the following observations about the Applicant:

Much of [the Applicant's] self esteem and self confidence seem to have been wrapped up in her work. It has been very difficult for her to consider other vocational alternatives but now she has clearly resigned herself to pursuing some other field if indeed she was capable. She hopes that she can still remain in some form of personal service occupation however.

In my view, the Applicant is now at the point, five years post-accident, when she must decide within a very short time whether she will return to nursing or some other occupation. If she is determined to continue with nursing, she will require active rehabilitation and work-hardening, as well as psychological support, including pain education. If she decides not to return to nursing, she must decide, with the Insurer's assistance, what sort of work she would like to do. Dr. Scherer made the following recommendation:

Very clearly, this woman needs to consider a change of occupations and is not employable presently on a full-time basis and would likely encounter considerable difficulty in meeting the stamina demands of sedentary part-time work. A graduated program of preparation/reentry was recommended, possibly using a return to school with gradually increasing hours per semester as a means of determining tolerances and gradually reintroducing her to productive work.

The Applicant has expressed interest in a career in pharmacy, teaching, counselling or occupations in the areas of health care or social services. Crawford & Company identified a number of training possibilities in its Employability Assessment of October 1995. Potential programs at Georgian College in Barrie included Office Administration Medical (four semesters), Opthalmic Dispenser (four semesters plus two work co-op terms), and Developmental Services Worker (four semesters). Possible programs at the Ontario Business College in Barrie included Medical Office Lab Assistant (6½ months), Pharmacy Technician (eight months), and Human Service Worker (12 months). The Crawford report states that these programs require afternoon attendance only. These or other similar programs may offer an opportunity for the Applicant to begin reintegrating herself into the workforce.

Special Award:

The Applicant claims a special award under section 282(10) of the Act, which provides as follows:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule, shall award a lum sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

The Applicant claims that the Insurer's decision to terminate benefits in May 1994 was unreasonable because (i) the documents available to the Insurer at that time supported ongoing entitlement, (ii) rehabilitation had been terminated, despite the Applicant's need and request for further rehabilitation assistance, and (iii) the Insurer failed to explain its reasons for terminating benefits.

I am concerned that the Insurer's rehabilitation efforts were limited to identifying potential alternative occupations for the Applicant, without giving adequate consideration to options for returning her to her pre-accident RN studies and RNA work. The Insurer also failed to consider providing the training requirements identified in the labour market surveys conducted at the Insurer's request. I am also concerned that the labour market surveys did not consider employers' real demands in a very competitive workplace.

Section 282(10) provides for a special award "in addition to awarding the benefits and interest to which an insured person is entitled." As there is no claim for rehabilitation benefits before me³, I cannot order a special award on the basis of the Insurer's failure to provide rehabilitation benefits.

The Assessment of Claim form states only that "[b]enefits cease as of May 29, 1994 as the claimant is no longer substantially disabled from her automobile accident injuries." In fact, the Insurer terminated benefits on the basis of Ms. Brooks' February 25, 1994 report, in which Ms. Brooks reported that the Applicant was uninterested in the job prospects identified in the labour market survey.⁴ In Grout and Pilot Insurance Company (May 4, 1995), OIC A-004805, I made the following comments about an insurer's obligation to give an insured person notice of its reasons for terminating benefits:

Subsection 24(8) of the Schedule requires insurers to provide written reasons for denying or terminating an insured person’s benefits. In my view, when an insurer terminates benefits on the basis of a medical report, the report forms part of the insurer’s reasons for termination, and should generally be provided to the insured person.

I find these comments equally applicable where the Insurer relies on a rehabilitation report.

An insured person is not entitled to a special award just because an arbitrator finds that the insurer should not have terminated benefits. The insured person must show that the decision to terminate benefits was "unreasonable." In this case, I find that the Insurer's exclusive reliance on labour market surveys was unreasonable, given the Applicant’s strong work history, her commitment to nursing, and the consensus amongst her medical, psychological and rehabilitation assessors that her recovery was being prolonged by accident-related psychological factors.

In May 1994, the Insurer had not requested an IME since Dr. Brandl had assessed the Applicant in June 1991. Dr. Malcolm examined the Applicant at the Insurer's request on September 30, 1994, some four months after benefits were terminated. His comments at that time were not significantly different from those expressed in his earlier reports to Applicant’s counsel. He reiterated that the Applicant's psychological problems were the major source of her difficulties, not her physical problems. From an orthopaedic point of view, he felt that the Applicant could work at the jobs Ms. Brooks had identified in the labour market survey, "however, the subjective impairment in disability is so overwhelming that her perception is that she will be unable to return to any of these forms of gainful employment." Despite the experts' consensus that the Applicant's problems were mainly psychological, and despite Dr. Scherer's supportive reports of October 1995, the Insurer did not request an Insurer Examination by a psychologist or psychiatrist, and did not obtain any psychological or vocational rehabilitation for the Applicant, as recommended in Dr. Scherer's report.

The Applicant's outstanding weekly benefits to date total about $53,433.60, exclusive of interest.⁵ The Insurer's conduct in this case was unreasonable, but I heard no evidence to suggest it was egregious or malicious. Moreover, I find that the Applicant's failure to progress in rehabilitation and her difficult relationship with Ms. Timmons gave the Insurer some reason for believing that she was uninterested in rehabilitation. The Applicant is entitled to a special award of $3,000.

Expenses:

The Applicant is entitled to be reimbursed for her arbitration expenses incurred, subject to the provisions of Regulation 664. Any dispute about the amount of expenses payable may be brought before me.

Order:

1. The Insurer will pay the Applicant ongoing weekly income benefits from May 29, 1994 under section 12(5)(b) of the Schedule, with interest under section 24(4) of the Schedule.

2. The Insurer will pay the Applicant a special award of $3,000 plus interest, pursuant to section 282(10) of the Act.

3. The Insurer will reimburse the Applicant for her expenses incurred in respect of the arbitration, under section 282(11) of the Act, subject to the rules set out in Regulation 664 (Schedule F to the Dispute Resolution Practice Code). I may be spoken to about any dispute as to the amount payable.

December 20, 1996

Nancy Makepeace Arbitrator

Date

APPENDIX "A"

EXHIBITS

Exhibit 1:

Medical Brief of Jennifer Spencer

Exhibit 2:

Jennifer Spencer's Resume

Exhibit 3:

Transcript of Academic Record - Jennifer Spencer - Georgian College

Exhibit 4:

Ontario Automobile Insurance - Assessment of Claim by Insurer

Exhibit 5:

Letter from Dr. M. Kugler, to Dr. M. Mitchell, dated April 22, 1988

Exhibit 6:

Letter from Dr. M. Kugler, to "Whom It May Concern," dated April 25, 1988

Exhibit 7:

Closure Report from Innovative Rehabilitation Inc., dated April 6, 1994

Exhibit 8:

Denial of Indemnity, dated March 10, 1994

Exhibit 9:

Letter from Dr. S.E. Scherer, PhD. Cpsych., to Laxton, Glass & Swartz, dated November 21, 1995

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. 2"I'm not quite sure how she was able to handle work as well as schooling."
3. 3The Assessment of Claim form, dated May 19, 1994 states, "The Insurer will continue to pay all reasonable and necessary medical and rehabilitation expenses that are related to the automobile accident injuries." (Exhibit 4)
4. 4Closure Report, dated April 6, 1994, prepared by Ms. Brooks (Exhibit 7) and Denial of Indemnity form, dated March 10, 1994, prepared by Barb Smith and approved by Mavis Haws (Exhibit 8).
5. 5Calculated at $404.80 per week over 132 weeks - to December 1, 1996.