Neutral Citation: 1996 ONICDRG 71
ONTARIO INSURANCE COMMISSION
BETWEEN:
MARIA DABARBARA
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Maria DaBarbara, was injured in a motor vehicle accident on October 20, 1992. She applied for and received statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under Ontario Regulation 672.1 Dominion terminated Mrs. DaBarbara's weekly income benefits on April 1, 1994.
The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mrs. DaBarbara entitled to weekly income benefits after April 1, 1994 under section 12 of the Schedule ?
Is Mrs. DaBarbara entitled to a special award under section 282 (10) of the Insurance Act ?
Mrs. DaBarbara also claims interest on any overdue benefits and her expenses incurred in respect of the hearing.
Result:
Mrs. DaBarbara is entitled to weekly income benefits after April 1, 1994 under section 12 of the Schedule.
Mrs. DaBarbara is not entitled to a special award under section 282(10) of the Insurance Act.
Mrs. DaBarbara is entitled to interest on overdue benefits under section 24(4) of the Schedule.
Mrs. DaBarbara is entitled to her expenses of the arbitration.
Hearing:
The hearing was held in North York, Ontario, on March 20 and 21, 1995, before me, Suesan Alves, Arbitrator.
Present at the Hearing:
Applicant:
Maria DaBarbara
Applicant's Representative:
Michael J. Gillen Barrister and Solicitor
Insurer's Representative:
Lawrence Foy Barrister and Solicitor
Witnesses:
Maria DaBarbara Dr. Sehmi Acacio DaBarbara Dr. Welsh
Exhibits: 22 Exhibits were filed at the hearing. They are detailed in Appendix A.
Evidence and Findings:
Background
On October 20, 1992, the Applicant, Maria DaBarbara was injured in a motor vehicle accident. At the time of the accident, Mrs. DaBarbara was 45 years of age and employed as a seamstress and alterationist. Dominion paid Mrs. DaBarbara weekly income benefits under section 12 of the Schedule until April 1, 1994. Mrs. DaBarbara claimed that she was entitled to ongoing weekly income benefits. She alleged that she suffered a herniated disc in the accident and that her pain was too severe to permit her to work more than four hours a day. Mrs. DaBarbara also claimed interest on overdue benefits, a special award and her expenses of the arbitration.
Dominion disputed Mrs. DaBarbara's entitlement to ongoing weekly income benefits, her claim for a special award and her claim for expenses. Counsel for the Insurer submitted that the herniated disc was "a red herring." He further submitted that Mrs. DaBarbara was not disabled, as she was looking for work. He submitted that the real reason for her claim was her inability to find work in a poor economy.
1. The Claim for Weekly Income Benefits
In order to succeed in her claim for weekly income benefits, under section 12 of the Schedule,_Mrs. DaBarbara must establish on a balance of probabilities that she remained substantially unable to perform the essential tasks of her occupation or employment after April 1, 1994.
At the time of the accident, Mrs. DaBarbara was employed as a seamstress and alterationist fitting and altering evening gowns and dresses. Although Mrs. DaBarbara had worked as a seamstress and alterationist at high-end retail fashion stores for some 20 years at the time of the accident, she had been working for approximately three months at Xanthe, one of the Lipton group of stores.
On the basis of a job site analysis prepared by a rehabilitation worker and Mrs. DaBarbara's testimony, I find that Mrs. DaBarbara's essential tasks were to fit and alter garments for 10 customers per day. In order to perform her essential tasks, she was required to walk, stand, bend, reach and kneel while measuring customers and pinning and fitting garments. The duration of the fitting would depend upon the complexity of the garment and the nature and extent of the alterations. Mrs. DaBarbara testified that in fitting a complex formal gown she could be required to kneel while fitting for up to half an hour.
While altering the garments, Mrs. DaBarbara was required to bend and sit while sewing by hand and on the sewing machine. She used her right foot to operate the controls of an industrial sewing machine. She was required to bend and lift while operating the steamer. She would also press and iron the garments. While Mrs. DaBarbara worked independently, her tasks were determined by the flow of customers, the nature of the garment and the customer's demands.
According to the job site analysis, Mrs. DaBarbara stood for four hours at a time and sat for four hours at a time. Mrs. DaBarbara testified that on busy days, such as Fridays and Saturdays, she would stand or sit continuously for four hours at a time, but was not required to do so every day. Generally, I accept Mrs. DaBarbara's testimony where it varies from the job site analysis. She had direct knowledge of the requirements of her job.The job site analysis was based on an interview with a manager who had not supervised Mrs. DaBarbara. I found Mrs. DaBarbara to be straightforward and generally, to understate her job requirements.
I find on the basis of her pay stubs, that on a weekly basis, Mrs. DaBarbara worked at least 44 hours per week prior to the accident. Mrs. DaBarbara testified that her overtime hours varied, depending on the needs of customers. For instance, when a customer bought a dress for an imminent special occasion, Mrs. DaBarbara would work overtime to have the garment altered and ready in time for the customer. At times, Mrs. DaBarbara was asked to work at other stores in the Lipton group and would do so.
Mrs. DaBarbara's delight in handling the delicate fabrics, which were often beaded or encrusted with pearls or sequins, the care she took in her work, and her pride in the quality of her work were evident during her testimony. Her strong desire to return to work was noted by a physiotherapist at the Canadian Back Institute. Similarly, the rehabilitation worker assigned to her by the Insurer described her as "extremely motivated to return to work."
Pre-accident Condition:
The clinical notes and records of Dr. Pinilla, Mrs. DaBarbara's family physician, for the period from January 1992 to March 1995 were filed as an exhibit. There is no indication in those notes that prior to the accident, Mrs. DaBarbara complained of pain to Dr. Pinilla. At the request of the Insurer, Mrs. DaBarbara was examined by Dr. Wiley, an orthopaedic surgeon, in April 1993. According to Dr. Wiley's report, Mrs. DaBarbara acknowledged that prior to the accident she had some work-related back pain. Mrs. DaBarbara worked for 20 years as a seamstress-alterationist. I find her work-related back pain did not interfere with her ability to perform her essential tasks prior to the accident.
Post-accident Condition:
On October 20, 1992, Mrs. DaBarbara was a passenger in a car which was stopped when it was struck from behind by a van. Mrs. DaBarbara felt pain in her neck and low back at the time of the accident, but declined to be taken to the hospital. She saw her family physician, Dr. Pinilla, on October 23, 1992. Dr. Pinilla prescribed medication, referred her to an orthopaedic surgeon and for physiotherapy.
After the accident, Mrs. DaBarbara continued to work at her job, taking off one and a half hours per day, three times a week, to attend physiotherapy. She testified that she struggled to do her work, and felt that she was not performing to her usual standards due to her pain and fatigue. She testified that since she had only worked for a short time at Xanthe, she continued to work as she was afraid of losing her job. At the end of the day, she was exhausted and in pain. She did not find physiotherapy helpful, and over time, experienced increasing pain.
Mr. DaBarbara, the Applicant 's husband, testified that after the accident, Mrs. DaBarbara did not work overtime she found it difficult to work for even eight hours. Prior to the accident, Mrs. DaBarbara would work at her job, then return home to cook, do dishes, laundry and vacuuming. Before the accident Mr. DaBarbara did little housework. He testified that he would help his wife with the dishes occasionally, and the odd time would put potatoes on to cook. Following the accident Mr. DaBarbara began performing household chores ordinarily performed by his wife.
On December 14, 1992, Mrs. DaBarbara was laid off from work. At her employer's request, she worked for two days during the Christmas rush. During the spring of 1993, she was recalled to work. Mrs. DaBarbara declined that offer as she did not feel able to return to work.
Mrs. DaBarbara participated in a comprehensive rehabilitation program at the Canadian Back Institute between April 27, 1993 and June 2, 1993. According to the progress and discharge reports of the Canadian Back Institute, Mrs. DaBarbara was cooperative and motivated. Nevertheless the physical goals which had been set were not met. The initial program was extended. While Mrs. DaBarbara's ability to do her housework improved, at the time of her discharge, she still could not tolerate full-time work. In particular, she continued to have difficulty with kneeling. She was discharged with the recommendation that she work part-time to build up her tolerance.
Mrs. DaBarbara testified that towards the end of the program at the Canadian Back Institute, she experienced an increase in pain and felt worse. She was reassured by the physiotherapist that she should go back to work, and that with time, her tolerance would improve.
Mrs. DaBarbara returned to her job on June 7, 1993, working four hours per day. She testified that she was happy to be back, but sad since she could not work the way she used to. She was tired when she returned home. She worked for 18 hours over four days and then experienced a severe flare-up of her low back pain, with pain radiating down her right leg.
On June 11, 1993, she saw her family physician, Dr. Pinilla. Mrs. DaBarbara hoped to return to work on June 14, 1993. On June 16, 1993, she returned to Dr. Pinilla who diagnosed severe lateral kyphosis and scoliosis lumbaris with rotation of pelvis and drooping of left shoulder." Dr. Pinilla again referred Mrs. DaBarbara to Dr. Sehmi, an orthopaedic surgeon.
On June 24, 1993, Mrs. DaBarbara learned from a newspaper report that her former employer had gone bankrupt. She made a number of telephone calls in an attempt to verify this information, but did not reach anyone at the company.
Mrs. DaBarbara then engaged in an extensive job search with the encouragement and assistance of her rehabilitation worker. She did a fresh resume, contacted old friends and acquaintances about jobs that might be available as well as various stores by telephone and in person . Mrs. DaBarbara agreed with counsel for the Insurer that she contacted 55 potential employers, but was unsuccessful in finding another job.
Mrs. DaBarbara testified that she was seeking part-time employment. She testified that she did not believe that she could work for more than four hours because of her pain. She stated that she was unable to sit for long periods of time, and had difficulty with kneeling and bending.
When she has pain, it affects her right leg, so that she is unable to operate the sewing machine. While at times she is able to bend over and pick things up from the ground, sometimes she is unable to do so. Mrs. DaBarbara claimed that she was still disabled at the time of the hearing.
The Applicant's Medical Evidence:
Dr. Pinilla, Mrs. DaBarbara's family physician treated her following the accident. He released Mrs. DaBarbara to work part-time in June 1993 for four hours a day, five days per week. He then referred Mrs. DaBarbara to Dr. Sehmi, an orthopaedic surgeon. Dr. Sehmi testified at the hearing. Dr. Sehmi first saw Mrs. DaBarbara on November 17, 1992 and last saw her in February 1995. In May 1994, when Mrs. DaBarbara had a severe episode of back pain with pain down her right leg, he requested a CT-scan. The report of the scan indicated a herniated disc at the L4-5 level of Mrs. DaBarbara's spine.
Dr. Sehmi noted that Mrs. DaBarbara suffered from degenerative disc disease prior to the accident. He testified that in most cases, this does not cause problems for a patient, unless the degeneration is quite severe. He stated that Mrs. DaBarbara had been able to do her job for 20 years, and, but for the accident, would likely have continued to do her job without difficulty. Dr. Sehmi testified that the onset of severe pain following the herniation of a disc varies from patient to patient. Some patients start out with severe pain; in other patients the onset of pain is delayed. In his opinion, the delay in the onset of Mrs. DaBarbara's pain was reasonable. In his opinion, the probable cause of the herniated disc was trauma, specifically, the motor vehicle accident on October 20, 1992.
Dr. Sehmi testified that the specific problem posed by the central disc herniation for Mrs. DaBarbara is that the herniation would increase due to pressure caused by standing, leaning over, kneeling and sitting. These were some of the important physical requirements of Mrs. DaBarbara's job. Dr. Sehmi is of the firm opinion that Mrs. DaBarbara would not be able to work at her job for more than four hours a day. In his opinion, her pain would be too severe for her to continue. He testified that even if she found full-time work, he would recommend that she increase her hours of work by one hour per month, only if she successfully managed to work more than four hours per day. Only with Mrs. DaBarbara's actual experience over time would it be possible to say whether she would be able to work for longer hours.
Dr. Sehmi testified that he sees many patients, and feels that he can distinguish between patients who are motivated to return to work and those who are not. He felt that Mrs. DaBarbara was motivated to return to work.
The Insurer's Medical Evidence:
In April 1993, Dr. Wiley, an orthopaedic surgeon, examined Mrs. DaBarbara at the request of the Insurer. Dr. Wiley recommended a comprehensive rehabilitation program of 3-4 weeks. In Dr.Wiley's opinion, Mrs. DaBarbara should be out looking for work by the end of the fourth week of such a program. Dominion arranged for and funded a comprehensive rehabilitation program at the Canadian Back Institute between April and June 1993, in which Mrs. DaBarbara participated, as noted earlier. The Canadian Back Institute recommended that she return to work part-time and build her tolerance to full-time work.
On February 21, 1994, Dr. Welsh, an orthopaedic surgeon, examined Mrs. DaBarbara at the request of the Insurer. Dr. Welsh's impression was that Mrs. DaBarbara had sustained a simple strain injury to her neck and back. He recommended a return to work with no restrictions.
Dr. Welsh testified at the hearing. It appears that Dr. Welsh was presented with the report of the CT-scan, performed in May 1994, for the first time, on the day that he gave his evidence at the hearing. Dr. Welsh stated that he was surprised to see that Mrs. DaBarbara had gone on to have a CT-scan. Although he appeared to be perturbed by the new information, Dr. Welsh testified that in his opinion, Mrs. DaBarbara had a normal spine for her age, with some degenerative disease. In his opinion, the herniated disc was a result of degenerative disease, not trauma. He stated that an individual with "a degenerate spine" would have symptoms with or without trauma. He maintained his opinion that there was no physical reason preventing Mrs. DaBarbara from working in a full-time capacity. Dr. Welsh stated that nothing in Dr. Sehmi's reports changed his opinion.
In his report, Dr. Welsh described Mrs. DaBarbara as giving way on strength testing and therefore having a "pain affect." There was also a notation of "chronic pain syndrome" in the notes and records made in relation to the assessment. Dr. Welsh testified that this note was made by a physiotherapist who participated in the assessment. Dr. Welsh stated that Mrs. DaBarbara was not malingering, or deliberately attempting to deceive him. He did not believe that she wilfully intended to mislead. He testified that Mrs. DaBarbara's response reflected the effect of pain. He went on to state that there was no reason to doubt Mrs. DaBarbara's experience of pain. He stated that "the quantum step of coping with back pain will lead an individual not to be able to perform. We only do what we believe we can do." However, he felt it was important that it not be misconstrued that Mrs. DaBarbara was disabled on a physical basis.
Conclusion
To the extent that their opinions vary as to Mrs. DaBarbara's ability to perform the essential tasks of her employment, I prefer the evidence of Dr. Sehmi, a treating orthopaedic surgeon, to that of Dr. Pinilla, a family physician. I also prefer the opinion of Dr. Sehmi to that of Dr. Welsh. While both are orthopaedic surgeons, Dr. Sehmi followed Mrs. DaBarbara between 1992 and 1995. He had the benefit of seeing Mrs. DaBarbara more often, and saw her when she had her pain flare-ups. He provided a plausible opinion as to the cause of the disc herniation. He presented a specific analysis of which essential tasks of Mrs. DaBarbara's job would cause her to experience increased pain. He persuaded me that he has a good understanding of Mrs. DaBarbara, her motivation to return to work, her experience of pain, and I accept his opinion.
I also accept the evidence of Mrs. DaBarbara. In particular, I accept her evidence that she was looking for part-time work, as recommended by the Canadian Back Institute. I have carefully considered the submissions of counsel for the Insurer that Mrs. DaBarbara claimed weekly income benefits because of the poor economy. Mrs. DaBarbara's disability claim coincides with a depressed economy and bankruptcies in the high-end retail fashion business. This is a barrier to Mrs. DaBarbara finding work; it does not mean that she is not disabled. Having carefully considered all of the evidence, and in particular, my assessment of the Applicant's credibility, I am satisfied that Mrs. DaBarbara was highly motivated to return to work, and it is merely a coincidence that she is claiming disability benefits in a poor economy.
Mrs. DaBarbara can do most aspects of her job, although not as well as before, for 20 hours a week. Pre-accident, Mrs. DaBarbara worked a minimum of 44 hours a week. In my view, Mrs. DaBarbara has established on a balance of probabilities that she is substantially unable to perform the essential tasks of her employment as a result of the injuries she sustained in the motor vehicle accident on October 20, 1992.
2. The Claim for a Special Award:
The Applicant claimed a special award. A special award is payable under section 282 (10) of the Insurance Act, where an arbitrator finds that the insurer has unreasonably terminated or withheld benefits.
I heard little evidence or submissions with respect to the claim for a special award. There were conflicting medical opinions with respect to Mrs. DaBarbara's ability to return to work. On the basis of the evidence before me, in my view, this is not a case in which the Insurer can be said to have terminated benefits or withheld payments unreasonably. I am not persuaded that a special award is appropriate in the circumstances of this case.
3. The Applicant's Claim for Expenses:
The Applicant seeks an award of her expenses. An arbitrator has a discretion to award these expenses pursuant to section 282(11) of the Insurance Act. In exercising my discretion, I have considered the intent and purpose of the legislative scheme, the need to facilitate applicants' access to the informal adjudication of disputes, the submissions of counsel and the circumstances of this case. I exercise my discretion to award the Applicant her expenses of the arbitration under Part F of the Dispute Resolution Practice Code - August 1, 1995.
Order:
Mrs. DaBarbara is entitled to weekly income benefits after April 1, 1994 under section 12 of the Schedule.
Mrs. DaBarbara is not entitled to a special award under section 282(10) of the Insurance Act.
Mrs. DaBarbara is entitled to interest on overdue benefits under section 24(4) of the Schedule.
Mrs. DaBarbara is entitled to her expenses incurred in respect of the arbitration.
May 3, 1996
Suesan Alves Arbitrator
Date