Neutral Citation: 1997 ONICDRG 128

OIC A-951394

ONTARIO INSURANCE COMMISSION

BETWEEN:

MARIA BARREIRA

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Maria Barreira, was injured in a motor vehicle accident on Saturday, October 26, 1991, on her way to work. She has not returned to work since the accident. Mrs. Barreira applied for and received statutory accident benefits from Allstate Insurance Company of Canada, payable under the Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993. Allstate paid weekly income benefits under section 12 of the Schedule for 156 weeks.

Mrs. Barreira seeks reinstatement of her benefits on the basis that she cannot return to any work because of chronic pain and fibromyalgia.

The parties were unable to resolve their disputes through mediation, and Mrs. Barreira applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. What is the period of Mrs. Barreira's entitlement?

Allstate alleges that Mrs. Barreira fails the test for further benefits set out in section 12(5)(b) of the Schedule. As applied to this case, this section states that unless it has been established that Mrs. Barreira's injury continuously prevents her from engaging in any occupation or employment for which she is reasonably suited by education, training, or experience, she is not entitled to a weekly income benefit from Allstate more than 156 weeks after the accident.

2. Is Allstate liable to pay a special award?

Mrs. Barreira's counsel raised this issue only at the end of her submissions.

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

Result:

1. Mrs. Barreira continues to be entitled to weekly income benefits.

2. Allstate is not liable to pay a special award.

Mrs. Barreira is entitled to interest on any amounts owing and her expenses incurred in the hearing.

Hearing:

The hearing was held in London, Ontario, on September 16, 17, 18, 19, and October 24, 1996, before me, David Evans, Arbitrator.

Details of those present at the hearing, witnesses, and exhibits are set out in the Appendix.

Evidence and Findings:

Background

Mrs. Barreira was born on June 2, 1960, in Portugal, an older sister in a large family. She attended school up to age 14, having finished grade 5 after repeating two years. She lived in a small village, worked on the family farm, helped with the cooking, and looked after the younger children. She married at age 21 and bore a daughter in 1984. The Barreiras arrived in Canada in February 1990. One month after her arrival, Mrs. Barreira started working at the Form Rite factory as a bender-assembler.

Hours and Type of Work

Mrs. Barreira's job consisted of loading, assembling and unloading very light pieces of hosing and tubing. She had to bend approximately every 10 minutes to retrieve the tubing from a bin. She described this work as light and enjoyable.

Mrs. Barreira worked seven days a week at Form Rite. On weekdays she usually worked the 4 p.m. to 12:30 a.m. shift, often requesting two hours of overtime. She liked the large salary and wished to take advantage of the extra hours given to her. Mrs. Barreira also had a busy home life. She arose at 8:00 a.m. to dress her daughter and see her off to school. During the day Mrs. Barreira did the housework and prepared the evening meal. She would then pick her daughter up after school, take her to the babysitter, and go to work. Mrs. Barreira's husband testified that he very rarely did any work around the house.

Mrs. Barreira would have been laid off on November 29, 1991, with very little chance of being called back because of her low seniority.

Pre-accident Health

Mrs. Barreira testified that her only medical problem before the accident was a bout of headaches, dizziness, nausea, and vomiting that she suffered shortly after arriving in Canada. Her family physician, Dr. V. S. Chawla, blamed her symptoms on the flight and prescribed medication. Mrs. Barreira sought no further treatment for these complaints.

The Accident

Mrs. Barreira was driving to work on October 26, 1991, when a car ran a red light and hit the driver's side of her car. She remembers opening the car door afterwards, getting out, and falling down. Although the police called an ambulance, the ambulance operators said she had normal post-accident symptoms and did not take her to hospital. Mrs. Barreira went home. Later that afternoon, her cousin took her to the hospital because she said she was feeling bad. She saw Dr. Chawla two days later.

Post-accident symptoms

Mrs. Barreira testified that when she saw Dr. Chawla two days after the accident on October 28, 1991, she had pain in her head, neck, shoulder, and lower back, and pain radiating down into her legs and arms.

Dr. Chawla's notes of that day remarked on Mrs. Barreira's dizziness and pains but contain no reference to pain in her entire body or to pain radiating down her legs. Dr. Chawla testified that Mrs. Barreira did not complain to him of radiating pain at that time. He diagnosed musculoligamentous strain and referred her for an x-ray examination. The x-ray was normal.

Mrs. Barreira's symptoms remained generally unchanged after the accident. Over two years later on December 13, 1993, Dr. Chawla wrote to Mrs. Barreira's long-term disability insurer as follows:

Mrs. Barreira's current symptoms are still the same as she has always complained of in the past. She complains of pain in the cervical region and pain in the right shoulder regions. She has difficulty in moving her shoulder above a certain level. On examination conducted on September 21, and October 18, 1993, she was tender over the cervical region and tender over both shoulders, the right being worse than the left. The[re] were moderately restricted movements of the cervical region and markedly restricted movements of the right shoulder regions. There was a decreased grip of the right hand.

Mrs. Barreira testified that currently she has pain all over her body, with headaches every day. Her pain starts in her neck and spreads to her shoulders and into her arms and hands. Her hands are numb with no strength. Her back pain starts in the middle of her back and spreads to her legs as a strong stabbing sensation, especially in the right leg.

Effect of the Accident on Mrs. Barreira's Life

Mrs. Barreira testified that her life became a "zero, nothing" after the accident. Her husband now must do most of the work around the house, such as shopping and vacuuming, assisted by their daughter. Mrs. Barreira cannot stand, sit, or walk for long periods. She finds it difficult to lift anything heavy or to bend over.

Development of Symptoms in Dr. Chawla's Notes

The following symptoms developed over the years after the accident:

• December 16, 1991: chest pain

• February 6, 1992: diagnosis of reactive depression

• March 4, 1992: weakness in Mrs. Barreira's hands and decreased grip

• May 20, 1992: chronic pain affects Mrs. Barreira's ability to control her temper

• July 6, 1992: diagnosis of chronic pain

• February 10, 1993: pregnant

• January 1994: Dr. Harold Merskey, a psychiatrist who saw Mrs. Barreira on referral from Dr. Chawla, diagnoses reactive depression and chronic pain.

• May 2, 1994: pain going down her legs

• February 20, 1995: New pains on her side and breathing problems lead to a tentative diagnosis of fibromyalgia and a referral to Dr. Manfred Harth, rheumatologist.

• March 9, 1995: Mrs. Barreira complains of pain "everywhere" after a fall at the Portuguese Centre on March 8, 1995.

• May 1995: Dr. Merskey diagnoses fibromyalgia.

• October 1995: Dr. Harth diagnoses fibromyalgia.

Restrictions on Work

Dr. Chawla was initially hopeful that Mrs. Barreira would be able to return to work. He referred Mrs. Barreira to Dr. Patrick J. Potter, a rehabilitation specialist.

In October 1992 Dr. Potter determined that Mrs. Barreira should avoid any type of repetitive activities including repetitive use of the arms, static use of the neck, prolonged neck posturing, and repetitive lifting above the shoulders. He excluded Mrs. Barreira from factory work.

In September 1993 Dr. Chawla placed these restrictions on Mrs. Barreira: no repetitive work, no lifting, and no carrying of anything weighing more than one pound. He did not think she could attempt modified work at Form Rite.

Dr. Chawla testified that he changed his opinion of Mrs. Barreira's ability to return to work after Dr. Manfred Harm diagnosed fibromyalgia in October 1994. Based on her continued pain, restrictions of movements, and dizziness, Dr. Chawla does not feel Mrs. Barreira could work at any occupation.

Pregnancy

Mrs. Barreira was attempting to become pregnant before the accident. Dr. Chawla testified that he believed Mrs. Barreira was still trying to get pregnant after the accident. In February 1993 Dr. Chawla determined that Mrs. Barreira was eight weeks pregnant. She bore a son on September 13, 1993.

Mrs. Barreira testified that she became pregnant unintentionally. She did not practice birth control because, as she had been trying (unsuccessfully) to become pregnant for an extended period, she did not think she would become pregnant.

Vocational Therapy

In May 1994 Dr. Chawla recommended to Ms. Miller of Medex that Mrs. Barreira undertake vocational therapy.

Ms. Miller subsequently sent Mrs. Barreira for a physical capacities evaluation at The Ontario March of Dimes. Their report concluded that Mrs. Barreira could not return to a job requiring repetitive movement, such as an assembly job in a factory. The report found Mrs. Barreira much below average for manual and finger dexterity, motor co-ordination, and level of endurance. The report concluded that Mrs. Barreira was not work-ready and that she required reconditioning.

This physical capacities evaluation led to Ms. Miller seeking a special work trial for Mrs. Barriera in a housekeeper position. Mrs. Barreira refused to undertake this work trial. Ms. Miller subsequently recommended closing the rehabilitation file because, despite Dr. Chawla's approval of the work trial, Mrs. Barreira had declined the rehabilitation services and recommendations.

Mrs. Barreira testified that Dr. Chawla never told her to try to return to work.

Dr. Chawla testified that he discussed a possible work trial with Ms. Miller and that he told Mrs. Barreira to try it. However, there is no record in his notes of having spoken with Mrs. Barreira about the work trial until November 14, 1994, after benefits were terminated. I find that the note indicates Mrs. Barreira first learned from Dr. Chawla his opinion of the work trial on that date.

Mrs. Barreira was assessed by the Medical Rehabilitation Service in Hamilton in October 1994. The Service concluded in its report of January 10, 1995, that Mrs. Barreira was not physically capable of attempting that work trial.

Dizzy spells

Over the weeks following the accident, Mrs. Barreira continued to complain of dizziness. Dr. Chawla referred her to Dr. John Brown, a neurologist. Dr. Brown's neurological examination was normal, as were an EMG nerve conduction study (to rule out carpal tunnel syndrome) and a CT scan of the cervical spine.

Mrs. Barreira testified that she has had dizzy spells since the accident. She related three instances in particular: she spilled hot water from a pot on the stove and was afraid she would have burnt her son if he had been near her; on March 8, 1995, she fell down the stairs at the Portuguese Centre on her way to English as a Second Language classes; in December 1995 she fell off her treadmill onto her son, breaking his shoulder.

After the fall at the Portuguese Centre, Dr. Chawla referred Mrs. Barreira to Dr. Sarah Stewart, another neurologist. Dr. Stewart found most tests normal and noted an element of anxiety.

Dr. Harold Merskey testified that the fall was likely caused by fainting provoked by Mrs. Barreira's ingestion of the amitriptyline he had prescribed for her in August 1994: patients on amitriptyline may faint if they stand up too suddenly or have just exerted themselves.

Effect of the Fall

Mrs. Barreira testified that the fall made her feel worse and that she then found it harder to turn her head and move her shoulders. Dr. Chawla's notes confirm these changes.

Dr. Merskey testified that in May 1995 he found a significant change in Mrs. Barreira's range of motion in her neck and shoulder joints.

Experts

Dr. Patrick J. Potter

Dr. Potter, rehabilitation specialist, diagnosed chronic pain.

Dr. Potter first saw Mrs. Barreira on May 29, 1992. Dr. Potter found her to be neurologically normal but with restricted cervical range. Dr. Potter diagnosed a soft tissue injury to the cervical spine. He recommended more aggressive physiotherapy and the trial of TENS for pain control.

Dr. Potter testified that as of the last consultation in April 1993 Mrs. Barreira was capable of sedentary work but suffered a language barrier.

Dr. Harold Merskey

Dr. Merskey first saw Mrs. Barreira on January 5, 1994. Dr. Merskey diagnosed cervical and low back sprain, a reactive depression, and a relatively minor post-traumatic stress disorder. Over the next several months Mrs. Barreira continued as before with some fluctuating but fairly consistent and troublesome pain. Mrs. Barreira presented additional symptoms after her fall at the Portuguese Centre. On May 31, 1995, Dr. Merskey found that, as all 18 fibromyalgia tender points were tender, Mrs. Barreira met the criteria for fibromyalgia.

Dr. Merskey testified that, while the fibromyalgia reduced Mrs. Barreira's ability to work, she was unable to work before he diagnosed it. Fibromyalgia often causes referred pain in the limbs, numbness in the hands and feet, and sleep disturbances. Dr. Merskey was not surprised that Mrs. Barreira has episodes of dizziness.

Dr. Merskey concluded that Mrs. Barreira is unemployable.

Dr. Manfred Harth

Dr. Harth, a rheumatologist, considers fibromyalgia his main area of interest. Dr. Harth described fibromyalgia as a chronic condition of generalized pain whose minimum criteria require pain to be present in at least three different regions of the body. At least 11 of the 18 possible tender points must be painful. Other features most patients have are mild to severe fatigue, non-refreshing sleep, a loss of concentration, and short-term memory loss. Non-diagnostic signs include migraine headaches and irritable bowel syndrome. Patients with fibromyalgia often show some fluctuation in their symptoms but no great improvement. Their impairments may include the inability to work and to cope with household tasks.

On October 18, 1995, Dr. Harth found that Mrs. Barreira had pain in all 18 of the possible tender points of fibromyalgia and that therefore she had a fibromyalgia syndrome. Mrs. Barreira had described other symptoms consistent with fibromyalgia such as non-refreshing sleep. He diagnosed Mrs. Barreira as disabled and highly unlikely to return to work.

Mrs. Barreira had no reported improvement in April 1996. Dr. Harm elicited faintness and some numbness and tingling by asking her to hyperventilate voluntarily. Dr. Harth suspected that the episodes of loss of consciousness are due at least in part to vasovagal episodes. The vagus is a nerve regulating the heart rate and the tone of the blood vessels. Some people are prone to have their heart slow down or to have decreased tone in their blood vessels. Such vasovagal episodes can happen to a perfectly healthy person and are a relatively harmless form of fainting.

Dr. Harm testified that the cornerstone of a diagnosis of fibromyalgia is generalized pain. Dr. Chawla's notes confirmed for him Mrs. Barreira's complaints of generalized pain within two days of the accident.

Dr. John Clifford

Dr. Clifford, a physiatrist, saw Mrs. Barreira at Allstate's request on May 31, 1996.

Dr. Clifford reports that Mrs. Barreira's long history of passive physiotherapy had over-medicalized her. Her exaggerated responses to light palpations such as sudden-give weakness made it difficult to assess her objectively. On a practical basis, he felt that she was so deconditioned that she required a process of reconditioning lasting four to six months, after which she could return to her former employment.

Other Medical Reports

Barbara Mills of Medex conducted a functional capacities assessment of Mrs. Barreira in November 1993. She found that Mrs. Barreira had poor tolerances for bending at the waist and neck, poor tolerances for repetitive handling and reaching in any plane, low productivity in handling tasks, poor movement quality, and end range stiffness. Because of Mrs. Barreira's limitations in her ability to maintain postures away from the centre of gravity, postures often required in normal work procedures, Ms. Mills questioned whether Mrs. Barreira could return to highly repetitious jobs with poor ergonomic design.

In a report dated January 10, 1995, the Medical Rehabilitation Service sets out its assessment of Mrs. Barreira conducted in October 1994. The Service concluded that Mrs. Barreira did not suffer from a significant closed head injury, but she could neither return to her old occupation nor, in light of her extreme level of disability, would she be able to perform the minimal physical demands of the housekeeper position. The report concludes that a highly structured behavioural program would enable Mrs. Barreira to return to the labour market after three months.

Entitlement to Benefits:

To summarize the medical evidence, no doctor says Mrs. Barreira can presently work.

Allstate argues that the fall at the Portuguese Centre that led to the diagnosis of fibromyalgia was unrelated to the accident. I find that the fall was related to the accident because the episodes of dizziness commenced after the accident and are linked by several medical hypotheses to the accident.

Allstate argues that Mrs. Barreira is not a credible witness and that therefore the diagnosis of fibromyalgia cannot be supported. Allstate attacked Mrs. Barreira's credibility on a number of points. The most important one is Mrs. Barreira's denial that Dr. Chawla recommended the work trial to her. I have already found that his clinical notes support Mrs. Barreira's version of events.

I do not find Mrs. Barreira's testimony so compromised and lacking in credibility as to vitiate the diagnoses of fibromyalgia. Since I have found that the fall was related to the accident, it follows that the subsequent worsening of Mrs. Barreira's condition and the diagnoses of fibromyalgia are related to the fall as well.

Based on the reports of Ms. Mills and the diagnoses of fibromyalgia, I find that Mrs. Barreira cannot return to her former position or to any similar factory employment. There is no evidence before me that Mrs. Barreira can perform any other non-sedentary job. Mrs. Barreira's lack of education and her poor English skills preclude her from most sedentary jobs, and Allstate provided no alternative sedentary jobs suitable for Mrs. Barreira.

I find that Mrs. Barreira remains entitled to weekly income benefits on the basis that she is not physically capable of performing a suitable job nor, given her education, training and experience, is she suited to perform any job of which she is physically capable.

The parties did not dispute the quantum paid to Mrs. Barreira. Accordingly, I assume that the parties can determine the amount owing, including any credit for payments made after termination of benefits. Mrs. Barreira is also entitled to interest on the outstanding payments.

Special Award:

Section 282(10) of the Insurance Act gives me the power to award a lump sum if I find that Allstate has unreasonably withheld or delayed payments.

As noted above, this request for a special award was only raised at the very end of the Applicant's submissions, although I would have the power to make such an award even without the request (subject to fairness).

At the time Mrs. Barreira's benefits were terminated, Allstate believed that Dr. Chawla had released Mrs. Barreira to a work trial that she subsequently refused. Allstate did offer further benefits once the Medical Rehabilitation Service recommended further treatment, albeit only at mediation.

My findings also required me to make difficult assessments of credibility in order to support the diagnosis of fibromyalgia. Fibromyalgia itself is a somewhat controversial diagnosis, at least in the medical-legal context.

Given these factors, I do not find that Allstate unreasonably withheld payment.

Expenses:

Mrs. Barreira is entitled to her reasonable expenses of this hearing.

Order:

1. Mrs. Barreira is entitled to continued weekly income benefits.

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

3. Mrs. Barreira is entitled to interest on the outstanding benefits.

July 11, 1997

David Evans

Arbitrator

Date

APPENDIX

Present at the Hearing:

Applicant:

Maria Barreira

Mrs. Barreira's Representative:

Cynthia L. Mackenzie

Barrister and Solicitor

Allstate's Representative:

Ross R. Nicholson

Barrister and Solicitor

Allstate's Officer:

Robert Hisson

Translators:

Joseph Figueiredo, John Barros

Witnesses:

Mrs. Maria Barreira

Dr. V. S. Chawla

Dr. Harold Merskey

Mr. Manuel Barreira

Dr. Patrick J. Potter

Dr. M. Harth

Dr. John C. Clifford

Exhibits:

Exhibit 1

Medical Brief of Maria Barreira

Exhibit 2

Document Brief of Maria Barreira

Exhibit 3

Report of Dr. Sarah A. Stewart dated June 8, 1995

Exhibit 4

Report of Dr. Sarah A. Stewart dated January 22, 1996

Exhibit 5

Letter from Debra Miller of Medex to Dr. Chawla dated September 28, 1994, as marked by Dr. Chawla

Exhibit 6

Report of Dr. Alfred H. Dick, Optometrist, dated May 16, 1994

Exhibit 7

Handwritten note describing Mrs. Barreira's symptoms when she saw Dr. Chawla for the first time after the accident

Exhibit 8

Clinical Notes of Dr. D. B. Atack, Victoria Hospital

Exhibit 9

Supplementary Medical Brief

Exhibit 10

Curriculum Vitae of Dr. Harold Merskey

Exhibit 11

Clinical notes and records of Dr. Merskey

Exhibit 12

Resume of Dr. Patrick J. Potter

Exhibit 13

Bundle of Medex correspondence and notes to Dr. Potter

Exhibit 14

Curriculum Vitae of Dr. Manfred Harm

Exhibit 15

Curriculum Vitae of Dr. John C. Clifford