Heather Thompson v. Peel Mutual Insurance Company, 1997 ONICDRG 159

Neutral Citation: 1997 ONICDRG 159

OIC A96-000734

ONTARIO INSURANCE COMMISSION

BETWEEN:

HEATHER THOMPSON

Applicant

and

PEEL MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Heather Thompson, was injured in a motor vehicle accident on December 14, 1992. She applied for and received statutory accident benefits from Peel Mutual Insurance Company ("Peel"), payable under Ontario Regulation 672.¹ Peel terminated weekly income benefits on November 4, 1995. The parties were unable to resolve their disputes through mediation, and Mrs. Thompson applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Thompson entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule after December 21, 1995?

2. Is Mrs. Thompson entitled to supplementary medical and rehabilitation expenses pursuant to section 6 of the Schedule for child care, physiotherapy or continuing education?

3. Is Mrs. Thompson entitled to a special award pursuant to section 282(10) of the Insurance Act?

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

Result:

1. Mrs. Thompson is entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule for the period December 21, 1995 to June 20, 1996 together with interest.

2. Mrs. Thompson is not entitled to supplementary medical and rehabilitation benefits for child care, physiotherapy or continuing education.

3. Mrs. Thompson is not entitled to a special award pursuant to section 282(10) of the Insurance Act.

Hearing:

The hearing was held in Barrie, Ontario, on July 14, 15 and 16, 1997. The proceedings were recorded by Lynn Zinn and Jackie Paterson of Legal Reporting Services.

Present at the Hearing:

Applicant:

Heather Thompson

Mrs. Thompson's

Steven Rastin

Representative:

Barrister and Solicitor

Peel's

S.J. Chip Petrillo

Representative:

Barrister and Solicitor

Peel's

Ellen Edmonstone

Officer:

Claims Manager

Before:

William J. Renahan

Arbitrator

Overview:

Much of the evidence in this case concerned the cause of Mrs. Thompson's back pain. I heard evidence that Mrs. Thompson's back pain was disabling and was caused by two pregnancies, endometriosis, excessive weight, deconditioning and the trauma of the motor vehicle accident. Ellen Edmonstone is the claims manager of the Insurer and handled the accident benefits claim. She testified that the Insurer agreed to fund treatment and eventually pay weekly income benefits even though she was not satisfied that Mrs. Thompson's back pain was caused by injuries sustained in the motor vehicle accident.

Mrs. Edmonstone terminated accident benefits by letter dated October 30, 1995, shortly after she received videotape surveillance which showed Mrs. Thompson engaged in activities in her driveway and at a gym. At the time benefits were terminated, Mrs. Thompson had completed about one half of a work hardening program. Mrs. Edmonstone agreed to continue funding the program but terminated weekly income benefits. Mrs. Thompson successfully completed the program and conceded that at the end of the program she was close to returning to work. At the hearing she claimed that she regressed as a result of the Insurer prematurely terminating weekly income benefits, child care expenses and physiotherapy expenses and that she now needs more extensive rehabilitation before she is fit to return to suitable employment.

Evidence and Findings:

Mrs. Thompson is 26 years old. She is married and has a four-year-old daughter and three-year-old son.

On Monday December 14, 1992, when she was five months pregnant with her first child, she was involved in a motor vehicle collision in Midland, Ontario, when an approaching vehicle made a left turn into the rear portion of the vehicle she was driving. The force of the collision pushed her vehicle into a snow bank. Mrs. Thompson hit her head on the driver's door and her body was forced onto the passenger side of the vehicle. After the police investigated the accident, Mrs. Thompson telephoned her mother who came to the accident scene and drove Mrs. Thompson to the hospital.

Mrs. Thompson's primary concern was that of her unborn child. The emergency room doctor confirmed that the child was not injured and noted that Mrs. Thompson complained of a head injury.

After discharge from the hospital, Mrs. Thompson and her mother saw Dr. Colleen Watson, a chiropractor. Dr. Watson had started treating Mrs. Thompson one month earlier for low back pain, mostly on the left side. On the day of the accident, Dr. Watson recorded Mrs. Thompson's complaints of left lumbar pain, cervical stiffness, dizziness and headache. At the time of the accident Mrs. Thompson was employed at TRW Vehicle Safety Systems Ltd. For the previous three years she had worked 40 hours per week as a quality control inspector and machine operator, sewing buckles onto automobile seat belt webbing. She returned to work the week following the accident for three days and then was laid off for the seasonal layoff. Except for 21 hours in February 1993, Mrs. Thompson has not returned to work.

Mrs. Thompson notified the Insurer of the accident the day after. She did not make a claim for weekly income benefits until after her pregnancy because both she and Dr. Watson were not sure that her back pain and inability to work was due to her pregnancy or to injuries suffered in the motor vehicle accident. Mrs. Edmonstone testified that the Insurer agreed to fund chiropractic treatment and housekeeping assistance even though she was not sure that the need for treatment arose out of the motor vehicle accident.

About two years after the accident Mrs. Edmonstone authorized a lump sum payment of $35,000 to pay weekly income benefits up to date. Mrs. Edmonstone testified that she was pressured into making the payment. The Insurer continued to pay weekly income benefits for nearly 156 weeks. To avoid adducing evidence with respect to entitlement to weekly income benefits for the relatively short period up to the 156 week mark, the parties settled the claim for weekly income benefits pursuant to section 12(1) at the opening of the hearing, so that the only issue with respect to entitlement to weekly income benefits was confined to the test under section 12(5)(b) of the Schedule. The 156 week mark in this case occurred on December 21, 1995.

Mrs. Thompson claims that she is entitled to weekly income benefits beyond December 21, 1995 because of disabling low back pain caused by the motor vehicle accident.

Mrs. Thompson also claims certain supplementary medical and rehabilitation benefits pursuant to section 6 of the Schedule.

The law:

Mrs. Thompson is entitled to weekly income benefits after December 21, 1995 if she satisfies the test set out in section 12(5)(b) of the Schedule which provides:

(5) The insurer is not required to pay a weekly benefit under subsection (1),

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.

Medical evidence:

I considered the testimony, reports and notes of a number of professionals. Dr. O'Halloran, a gynaecologist and obstetrician, treated Mrs. Thompson for endometriosis in September 1991. Dr. Watson, a chiropractor, treated Mrs. Thompson from one month before the accident until April 1995. Dr. Watson was on maternity leave at the time of the hearing and did not appear. Her husband, Dr. Nicholson, a chiropractor with whom she practices in partnership, testified at the hearing. Dr. Grundmanis, a family doctor, saw Mrs. Thompson from May 1991 to present. Mr. Sebastian Asselbergs, a physiotherapist, treated Mrs. Thompson from April 1995 to November 1995.

Deirdre Wallace, of Rehabilitation Management Inc., was the second caseworker retained by the Insurer to coordinate services. She coordinated what was referred to as a work hardening program. Ms. Wallace retained Marilee Stevenson to find an employer who would allow Mrs. Thompson to work part-time with gradually increased hours. At the same time, Mr. Asselbergs set up an exercise program at a gym called Fitness Heaven. The exercise program was supervised by Krista Sargeant, a kinesiologist.

The Insurer relied on three and a half hours of surveillance videotape and the report of Dr. Zeldin, a medical doctor.

Disability:

From September 18, 1995 to November 24, 1995, Mrs. Thompson participated in a work hardening program. Marilee Stevenson arranged an unpaid part-time trial work program with Shoppers Drug Mart in conjunction with an exercise program developed by Mrs. Thompson's physiotherapist, Mr. Asselbergs.

Mrs. Thompson worked 12 hours the first week. At the sixth and last work-week she worked 28 hours. She worked as a pharmacy assistant. Her duties included filling prescriptions and leaving the prescriptions for the pharmacist to check, making computer entries, calling doctors for authorizations, preparing invoices, reorganizing and cleaning shelves, and checking stock for expired drugs. The pharmacist who supervised Mrs. Thompson, Eva Palkovicova, reported that at the end of the six weeks of trial work Mrs. Thompson was "job ready." She testified that although she saw no evidence that Mrs. Thompson worked in pain, she meant that she was "job ready" in the sense that Mrs. Thompson knew her duties and could perform them. Although she recommended that Mrs. Thompson apply for a full-time job, she did not know if Mrs. Thompson could work full time.

Marilee Stevenson talked to Mrs. Thompson regularly on the phone concerning her work at Shoppers and visited her and Mrs. Palkovicova in the store. Ms. Stevenson testified that Mrs. Thompson experienced pain and was tired and that she could work part-time at 18 hours a week and gradually work up to full-time hours. She did not know how long it would take Mrs. Thompson to work up to full-time hours.

On November 7, 1995, Dr. Zeldin reported to the Insurer his opinion that Mrs. Thompson had sustained a mild to moderate myofascial strain which did not cause "significant or ongoing physical impairment consequent upon her injury beyond the time frame of a number of months." He was aware of the trial work program at Shoppers Drug Mart and he reported that "She tells me she started working on a part-time basis and now is working seven and a half hours a day." I find that Dr. Zeldin's opinion that Mrs. Thompson was not impaired was partly based on the false assumption that she had started working part-time and was working full-time when he examined her. Mrs. Thompson never worked full-time hours at Shoppers. Dr. Zeldin's opinion on disability may have been different if he had had accurate information on the number of hours Mrs. Thompson worked.

The Insurer submitted approximately three and a half hours of surveillance videotape taken of Mrs. Thompson and asked me to conclude that the videotape demonstrated that Mrs. Thompson can engage in suitable employment. Most of the videotape was taken just before benefits were terminated. The videotape shows Mrs. Thompson in various activities including exercising at Fitness Heaven, lifting a playpen over a fence, stooping under the railing of the fence, bending, squatting and stretching.

Mrs. Thompson conceded that she was nearly ready to engage in full time suitable employment when benefits were terminated in the fall of 1995 and I am not satisfied that the surveillance evidence contradicts her testimony or shows that she was capable of engaging in suitable employment.

Marilee Stevenson monitored Mrs. Thompson's work performance at Shoppers by talking to Mrs. Thompson and her supervisor. She has experience placing injured workers in trial work situations. She testified in an objective manner. I accept her opinion that Mrs. Thompson was not physically capable of full-time work on November 24, 1995 when she finished her trial work at Shoppers.

Considering Mrs. Thompson's experience working on an assembly line in light factory work, her grade 12 education and her prior employment income ($16,000 in 1992 and $23,000 in 1991) I am satisfied that any light full-time work that pays more than $16,000 per year is suitable employment for Mrs. Thompson. A pharmacy assistant at Shoppers earns $7.95 per hour. I find that such work is suitable employment for Mrs. Thompson.

Since Mrs. Thompson could not work full-time at Shoppers on November 24, 1995 I am satisfied that she was disabled from suitable employment on December 21, 1995 when the 156 week test applied.

Causation:

Mrs. Thompson testified that said she is disabled with constant pain in her lower back which extends into her right leg. She said that the pain occurs weekly and lasts four to five days. She attributes it to the motor vehicle accident. She explained that she did not claim weekly income benefits until five months after the accident because she and Dr. Watson wanted to make sure the back pain was caused by the motor vehicle accident and not by her pregnancy.

Dr. Watson treated Mrs. Thompson in the month before the accident for low back pain. One month before the accident, on November 13, 1992 she recorded "low back and tailbone sore . . . sometimes affects left leg."

Dr. O'Halloran, a gynaecologist and obstetrician, saw Mrs. Thompson before the accident for endometriosis and complaints that related to her back and leg. On September 6, 1991 he noted: "The above patient is seen today because of lower abdominal pain over the last 2 years, mainly in her left side, really into her back and down her leg. . . ." At the hearing he described endometriosis as a painful condition in which tissue which normally grows inside the uterus grows on the outside of the uterus or attaches to the bladder. He testified that it is difficult to distinguish between low back pain caused by endometriosis and low back pain caused by trauma.

Other doctors commented on how Mrs. Thompson's pregnancies affected her back pain. In March 1995, Dr. Watson reported "Throughout her second pregnancy while continuing to care for her first small child, she experienced very threatening episodes of more severe pain."

In December 1995, Dr. Kathryn Wilkins, a physiatrist, reported to Dr. Grundmanis, that Mrs. Thompson had back pain primarily across the belt line and radiating down towards the right hip and that "She has had a subsequent pregnancy since that time, and states that during this time she also had a lot of the pain shooting down the right leg as well."

On April 30, 1996, Dr. Grundmanis reported "Her back pain was problematic during her second pregnancy and chiropractic treatments provided some relief."

Dr. O'Halloran and Mr. Asselbergs both testified that pregnancy complicates and is notorious for causing back pain.

At the time of the hearing, Mrs. Thompson weighed 210 pounds and she has been overweight since before the accident. Dr. O'Halloran, Dr. Grundmanis, Dr. Nicholson and Krista Sargeant all recommended that Mrs. Thompson lose weight to reduce her back pain.

I find that Mrs. Thompson's pregnancies, weight, endometriosis, and the trauma of the motor vehicle accident were all factors which contributed to her back pain. I heard no persuasive evidence that any one factor was more significant than another and I find that all these factors were significant factors which caused Mrs. Thompson's back pain. Many of the medical experts² commented that these factors led to Mrs. Thompson becoming inactive and in need of conditioning exercises to overcome her back pain. I therefore find that her deconditioned state was also a cause of her back pain.

Duration of disability:

Dr. Grundmanis was the only doctor who proffered a poor prognosis for Mrs. Thompson. I place little weight on his evidence because he appeared to testify from memory and his notes did not support his opinion. Although he testified that Mrs. Thompson was disabled by back pain, his records reveal few such complaints. Although he had the notes of Mrs. Thompson's former doctor, he did not read them. He testified that he does not find doctor's notes helpful. He explained that date stamps in his records which were not followed by any notations indicated either that Mrs. Thompson did not attend the appointment, that the appointment was for one of her children, or that notations were on his obstetrical chart. He could not relate his obstetrical chart to his regular chart for Mrs. Thompson.

Mrs. Thompson conceded that she could have returned to work after a short period of physiotherapy and exercise if the Insurer had not terminated benefits in November 1995.

In December 1995, Dr. Wilkins, a physiatrist, reported to Dr. Grundmanis:

She is doing the right thing in terms of stretching, and exercise, and this is just going to take its own time to slowly resolve.

A year and a half later, Dr. Lapp, a physiatrist, repeated this prognosis. Mrs. Thompson told Dr. Lapp that she stopped exercising at home at the end of the work hardening program. Dr. Lapp reported to Mrs. Thompson's lawyer:

Her prognosis overall remains reasonably good. That is, she has no physical impairment presently nor do I think she is destined to develop one. She is unlikely to come to any harm by virtue of any specific activities. She may experience more pain from time to time. If she is compliant with the proposed exercise regimen these episodes should be self limiting and not disabling. However, should she remain untreated her pain will likely persist and her functional capacity will remain limited.

I would recommend reinstituting a short course of physiotherapy for the purpose of retraining her in an appropriate heating and stretching regimen. The goal of the therapy should be to ensure that an adequate home based exercise program is feasible. Moreover, routine aerobic based exercise also remains important in this population of patients, and there is evidence that her overall function could be improved with this approach. A byproduct of optimizing her function is a reduction in pain awareness. I would not recommend further passive interventions such as massage, manipulation, acupuncture or medications. These may be reserved for acute exacerbations which she is likely to experience from time to time. She remains prone to recurrences of her present complaints if a home based exercise protocol is not adhered [sic] in the months and years to come.

These opinions that Mrs. Thompson exercise to overcome any disabling pain appear reasonable and are consistent with the opinions expressed by Dr. Nicholson and Mr. Asselbergs.

I am not satisfied that further physiotherapy was required at any time after November 1995. Mr. Asselbergs prescribed exercises for Mrs. Thompson and gave her pictures to illustrate what she should do. He did not explain why she needed physiotherapy after November 1995. Krista Sargeant supervised Mrs. Thompson's exercise program and I accept her evidence that by November 1995 Mrs. Thompson could exercise on her own without supervision.

On November 10, 1995, Ms. Sargeant reported that Mrs. Thompson stopped attending the gym and that she could do nothing to make her attend. Mrs. Thompson said that she stopped exercising because she could not afford a baby sitter. I find that the cost of child care was affordable. Christine Juneau testified that she thought that the cost of the child care service at the gym was $1.50 per child. As well, Mrs. Thompson had a stationary bike, free weights and a mat at home. I heard no explanation why she did not exercise at home or at the gym at times when her husband could take care of the children.

I accept Ms. Sargeant's opinion that after October 1995 Mrs. Thompson was responsible for her own motivation. I accept the opinions of Dr. Wilkins, Dr. Lapp, Dr. Nicholson and Mr. Asselbergs that Mrs. Thompson needed to exercise to improve her fitness and to overcome her back pain. I find that her failure to continue with her exercise program, either at home or at Fitness Heaven, was the sole cause of any continuing disability. I find that Mrs. Thompson would have been able to return to work if she had continued with the exercise program prescribed by Mr. Asselbergs and endorsed by the physiatrists, Dr. Wilkins and Dr. Lapp.

I heard very little evidence on how much time for conditioning and exercise Mrs. Thompson needed before she would be fit to return to work. The case worker, Deirdre Wallace, testified that when the Insurer terminated her services on October 20, 1995, Mrs. Thompson needed exercise and treatment for another eight months to one year before she would be ready for full-time work.

Mrs. Thompson's friend, Christine Juneau, worked full-time and exercised with Mrs. Thompson. She testified that in October 1995, Mrs. Thompson could keep up with her on the exercises. Mrs. Thompson testified that she was just about capable of full-time work when benefits were terminated and that she needed just a little more time. I find that Mrs. Thompson was nearly capable of full-time work when benefits were terminated and required exercise at the lower end of the scale proposed by Ms. Wallace before she was fully capable of full-time work.

Accordingly, I find that if Mrs. Thompson had continued her exercise program for another eight months from October 20, 1995, she would have become fit enough to engage in full-time employment by June 20, 1996. As benefits were only in issue after December 21, 1995, Mrs. Thompson is entitled to weekly income benefits for the period December 21, 1995 to June 20, 1996.

Child care expenses:

I accept Dr. Lapp's opinion that it was reasonable for Mrs. Thompson to exercise at home. Accordingly, child care expenses are not reasonably required.

Physiotherapy:

Mrs. Thompson claimed ongoing physiotherapy from Mr. Asselbergs. Mr. Asselbergs treated Mrs. Thompson from April to December 1995. He suggested that she needed a further two to three months of physiotherapy; however, he did not explain why. Dr. Asselbergs testified that Mrs. Thompson could cope with any pain she suffered during the trial work period and admitted that exercise was more important than therapy. I am not satisfied that further physiotherapy was reasonably required to alleviate a condition caused by the motor vehicle accident.

Continuing education:

Mrs. Thompson claimed the cost of a college education to train her to be a bookkeeper so that she could work in her mother's business. In view of my finding that Mrs. Thompson would have been capable of suitable employment if she continued with her conditioning exercises, the cost of a college education is not reasonable.

Special award:

Mrs. Thompson asked for a special award pursuant to section 282(10) of the Insurance Act on the grounds that the Insurer unreasonably withheld or delayed payment. Section 282(10) provides:

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 lump 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.

Mrs. Edmonstone terminated benefits after she saw the first set of videotapes. She called Mrs. Thompson on the telephone and accused her of lying and fraud. She said that Mrs. Thompson had inflated the child care expenses. Mrs. Edmonstone thought that Mrs. Thompson was exercising three to four hours a day because this is what Deirdre Wallace, the case worker, had incorrectly reported to her. The surveillance and investigators' reports show that over a six-day period Mrs. Thompson exercised about one and a half hours each day and then did personal errands. Mr. Asselbergs recommended that Mrs. Thompson exercise two to two and a half hours a day, three or four times a week. I find that Mrs. Thompson exercised for shorter periods than recommended, but more frequently. As well, I find that Mrs. Thompson did not understand that the child care paid for by the Insurer was for the purpose of her rehabilitation, and not so that she could do errands. I find that both parties operated under misapprehensions.

The scanty evidence I heard on the allegation of fraudulent child care claims does not satisfy me that Mrs. Thompson acted fraudulently. Mrs. Edmonstone may have lost her objectivity when she accused Mrs. Thompson of fraud and if the Insurer terminated weekly income benefits solely on the basis of the surveillance evidence, then I would find that it acted unreasonably in terminating benefits. However, I accept Mrs. Edmonstone's testimony that from the outset she was never satisfied that Mrs. Thompson's back pain was caused by the motor vehicle accident and that she felt that Mrs. Thompson's representatives "pressured" her into paying weekly income benefits. I accept counsel's argument that the Insurer erred on the side of caution by paying weekly benefits for nearly three years when it never was satisfied that the motor vehicle accident was a significant factor in Mrs. Thompson's back pain, and that the payment of benefits did not create a presumption that Mrs. Thompson was entitled to further weekly income benefits. The questions of whether Mrs. Thompson was disabled from suitable employment after December 21, 1995, and if so, whether that disability was caused by injuries sustained in the motor vehicle accident, are difficult questions of judgment. In these circumstances I am not satisfied that the Insurer acted unreasonably in terminating weekly income benefits when it did.

Expenses:

I heard no submisssions on expenses. If the parties cannot agree on expenses, either party may apply for me to determine the issue.

Order:

1. Heather Thompson is entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule for the period December 21, 1995 to June 20, 1996, together with interest calculated in accordance with section 24 of the Schedule.

2. Mrs. Thompson is not entitled to rehabilitation benefits for child care, physiotherapy or continuing education.

3. Mrs. Thompson is not entitled to a special award pursuant to section 282(10) of the Insurance Act.

August 20, 1997

William J. Renahan Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Dr. Wilkins, physiatrist; Dr. Nicholson, chiropractor; Dr. Lapp, physiatrist; Krista Sarjeant, kinesiologist; and Dr. Asselbergs, physiotherapist.