Neutral Citation: 1997 ONICDRG 163

OIC A96-001563

ONTARIO INSURANCE COMMISSION

BETWEEN:

LINDA PETERSON

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Linda Peterson, was injured in a motor vehicle accident on February 23, 1993. Allstate Insurance Company of Canada paid statutory accident benefits under Ontario Regulation 672¹ until October 31, 1994. Mrs. Peterson claimed ongoing weekly income benefits and certain supplementary rehabilitation expenses. The parties were unable to resolve their disputes through mediation, and Ms. Peterson applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits pursuant to sections 12(1) and 12(5)(b) of the Schedule after October 31, 1994?

2. Is the Applicant entitled to supplementary rehabilitation benefits pursuant to section 6 of the Schedule?

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

Result:

1. The Applicant is entitled to weekly income benefits pursuant to section 12(1) of the Schedule from October 31, 1994 until March 1, 1996 together with interest calculated in accordance with section 24 of the Schedule. The Applicant is not entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule after March 1, 1996.

2. The Applicant is entitled to transportation and tuition expenses in the amount of $2,579.09 pursuant to section 6 of the Schedule.

3. The Applicant is entitled to $435 pursuant to section 6(1)(f) of the Schedule for services provided by Liz Cornies.

Hearing:

The hearing was held in Windsor, Ontario, on September 8 and 9, 1997.

Present at the Hearing:

Applicant:

Linda Peterson

Ms. Peterson's

Robert R. Cunningham

Representative:

Barrister and Solicitor

Allstate's

Monique R. Bennett

Representative:

Barrister and Solicitor

Before:

William J. Renahan

Arbitrator

Introduction:

On February 23, 1993, Mrs. Peterson was driving her 1972 Lincoln motor vehicle along a concession road when her vehicle was struck from the rear as she slowed to make a turn. The force of the collision pushed Mrs. Peterson's vehicle into a ditch. Mrs. Peterson was briefly dazed. She noticed a flame in the rear of the vehicle where her 11-year-old daughter sat. Mrs. Peterson could not open the doors. She crawled out of the vehicle through the driver's window and then dragged her daughter out. Shortly after, the car burst into flames.

A neighbour took Mrs. Peterson to the Leamington District Hospital. An x-ray report of her cervical spine revealed loss of the normal cervical curvature which was "likely positional or due to muscle spasm." Mrs. Peterson underwent a number of diagnostic tests and imaging over the following years; however, this was the only positive test which disclosed injury or damage due to the accident.

The doctors who treated and examined Mrs. Peterson generally agreed that Mrs. Peterson sustained soft tissue injuries to her neck, shoulders and left side and I accept this evidence. Some of the doctors reported that Mrs. Peterson did not complain of low back pain until a number of weeks following the accident. However, two days after the accident Mrs. Peterson saw her family doctor and complained of back pain and the next week she complained of back pain when she started physiotherapy. I find that Mrs. Peterson also suffered soft tissue injuries to her low back as a result of the accident.

At the time of the accident, Mrs. Peterson lived in Ruthven, Ontario and worked full time as a restaurant waitress and assistant manager in a Big Boy restaurant in nearby Leamington. She remained off work for five months. Allstate arranged a gradual return to work program with her employer and Mrs. Peterson returned to part-time work in June 1993. At the beginning, she worked 15 minutes a day. Over the next year she gradually increased her hours to 14 hours a week. In May 1994 her employer terminated her employment. Allstate continued to pay weekly income benefits until October 31, 1994. Mrs. Peterson claims that she is entitled to weekly income benefits beyond October 31, 1994.

Entitlement to benefits for the first 156 weeks of disability:

Under section 12(1) of the Schedule, Mrs. Peterson is entitled to weekly income benefits for the period she suffered a substantial inability to perform the essential tasks of her occupation or employment. After 156 weeks the test for entitlement changes to whether Mrs. Peterson can engage in any suitable occupation. The parties agreed that the 156-week mark occurred on March 1, 1996.

Mrs. Peterson, her former supervisor, Laurie Terron, and her husband, Gerald Peterson, testified as to the essential tasks of Mrs. Peterson's employment.

Mrs. Peterson worked 30 to 35 hours per week, five days a week, from 6:30 a.m. to 2:00 p.m. Half of her duties involved waitressing and the other half involved managing and food preparation. She punched a time clock and had half an hour for lunch and two ten minute breaks. At her busiest she would serve 36 to 40 people at 12 tables, or manage six to eight other waitresses. Ms. Terron testified that other than her scheduled breaks, Mrs. Peterson might sit another half-hour to complete work schedules or calculate what food was needed to stock the salad and fruit bar and breakfast bar for the next day. Mr. Peterson is a long-distance truck driver and familiar with the duties of waitresses. He said that his wife used to be an excellent waitress because she "hustled."

I find little dispute that when Allstate terminated benefits in October 1994, Mrs. Peterson could perform the individual tasks of a waitress for short periods of time. However, I find that Mrs. Peterson's essential tasks of waitressing required that she be on her feet most of the day and perform these waitressing tasks quickly on a sustained basis throughout the day, five days a week. The question is whether she could perform these tasks on a sustained basis.

Much of the evidence concerning Mrs. Peterson's ability to perform the essential tasks of her employment focussed on the period around May 1994, when the Big Boy restaurant terminated her part-time employment. Normally, this evidence is not relevant because Allstate paid weekly income benefits through this period and for another five months until October 31, 1994. However, Allstate relied on medical reports completed around this time to support its decision that Mrs. Peterson did not suffer a substantial inability to perform the essential tasks of her employment. Mrs. Peterson argued that these reports were flawed because her actual work experience showed that she could not even work part-time. As well, the only evidence I heard concerning Mrs. Peterson's ability to work as a waitress from October 31, 1994 to the 156 week mark of March 1, 1996, was Mrs. Peterson's evidence that she did not improve after Big Boy terminated her employment in May 1994. Accordingly, I reviewed the evidence around May 1994, even though Allstate paid weekly income benefits through this period.

On June 1 and 2, 1994, Mrs. Peterson underwent a Functional Capacity Evaluation at the Canadian Back Institute. A physiotherapist reported:

The functional testing demonstrated a job match in all areas except prolonged standing and prolonged carrying of a fifteen pound tray. Her standing tolerance was observed to be half an hour. . . . Based on the results of the Functional Capacity Evaluation, I think that Linda demonstrates the ability to work on a four hour per day basis for a twenty hour work week. While there is no medical restriction to return to thirty to thirty-five hours per week, I think that this would be facilitated by gradually increasing the hours.

Based on these results it is recommended that Linda return to waitressing, four hours per day for twenty hours per week initially. After two weeks, she should be increased to six hours per day, and after one month eight hours per day.

Dr. Koppert, an orthopaedic surgeon, performed an independent medical examination and on August 2, 1994 reported to the case worker:

In my opinion, Mrs. Peterson is capable of performing those duties, at least on a part-time basis. If she cannot work at Big Boy unless she works full-time then she should pursue part-time employment elsewhere. I would agree with Christine McCormick, the physiotherapist who completed the Functional Capacity Evaluation of June 1-2, 1994, that Mrs. Peterson's current physical abilities meet the demands associated with waitressing.

At this time, 17 months following her injuries, the focus of treatment should not be on medical management of pain but rather on maximizing the patient's functional rehabilitation. Mrs. Peterson is at high risk for experiencing chronic pain. I feel that it would be in her best interest to return to work promptly, on at least a part-time basis, in an effort to optimize her long term functional status.

Mrs. Peterson testified that her actual work experience after the accident demonstrated that she could not even work part-time and that these reports are not reliable. She said that her employment was terminated at Big Boy on May 20, 1994 because she could not perform part-time duties satisfactorily.

As stated by Reid J., "There is no better evidence of incapacity to perform a task than the failure of an honest and sustained attempt to do it."² The question is whether Mrs. Peterson's attempt to return to work at the Big Boy restaurant was an honest and sustained attempt.

On May 20, 1994 Mrs. Peterson's caseworker interviewed her employer about the termination of Mrs. Peterson's employment. She reported to Allstate:

In talking with Debbie Grey, supervisor, she indicated that it will be necessary to let Mrs. Peterson go. Ms. Grey believed that they had given the claimant a fair chance to increase her working hours and noted that there had been times when the claimant had been crying during her breaks due to her pain. Ms. Grey does not believe that they are benefiting from the claimant working there and does not believe that she is improving.

Ms. Grey indicated that a new manager had just started working and noted that Mrs. Peterson's confusing hours would be an added stress for him. Ms. Grey did not wish to have Mrs. Peterson stay on any longer, even if it was at the expense of the insurance company.

This is not an isolated incident of Mrs. Peterson's difficulties. In February 1994 an occupational therapist observed Mrs. Peterson at work at the Big Boy restaurant. She reported to the caseworker that Mrs. Peterson started her two-hour shift with relaxed and smooth body movements but towards the end of the two hours her stress and discomfort increased as evidenced by her "frantic and guarded" body movements.

Allstate argued that I should find that Mrs. Peterson was not disabled on the basis of evidence that she was relieved that Big Boy terminated her employment, and on the basis of video surveillance evidence which showed Mrs. Peterson engaged in activities which require a strong back, such as placing a case of 24 bottles of beer in the trunk of a car.

I find that for the one-year trial work period Mrs. Peterson cooperated with her employer and Allstate and I do not find it unusual that she was relieved to leave a painful situation. Nor do I find that the video surveillance contradicts Mrs. Peterson's testimony or shows that she has the endurance and speed required to work as a waitress.

Mrs. Peterson complained of general and total body pain and inability to sleep. Her friend and former supervisor, Laurie Terron, was sufficiently concerned about Mrs. Peterson's complaints of pain that she referred her to an acupuncturist in February 1995. Mr. Peterson's concerns were consistent's with his wife's evidence.

Although the physiotherapist at the Canadian Back Institute predicted in June 1994 that Mrs. Peterson could resume full-time work shortly, her opinion that Mrs. Peterson could successfully engage in part-time waitressing work in June 1994 is contrary to the evidence of Mrs. Peterson and her employer that she could not work part-time.

I find that Mrs. Peterson was generally credible. I prefer her evidence and the information of Debbie Grey, as reported by the caseworker, that Mrs. Peterson was not able to work part-time over the opinion of the physiotherapist employed at the CBI and the opinion of Dr. Koppert that she could work part-time.

Mrs. Peterson continued to complain to her family doctor and to Dr. Teasell, a physiatrist, of disabling pain. Just prior to the hearing, her family doctor reported that Mrs. Peterson was "not one to magnify her symptoms" and that he thought she was doing the best she could. I accept Mrs. Peterson's evidence that she continues to have problems including inability to stand for long periods without pain and inability to sleep properly and I accept her evidence that she cannot return to work as a waitress because of generalized pain and fatigue. I find that she suffered a substantial inability to perform the essential tasks of her employment from October 31, 1994, the date weekly income benefits were terminated, to March 1, 1996, the 156-week mark.

Allstate argued that income from other part-time waitressing work was available to Mrs. Peterson and that I should make a deduction pursuant to section 15 of the Schedule. Considering that Mrs. Peterson had a three-year history of good performance at the Big Boy restaurant before the accident and considering that the restaurant did not want to keep her on part-time, even at the expense of the Allstate, I am not satisfied that income from other part-time work was "available" to Mrs. Peterson within the meaning of section 15.

Entitlement to weekly income benefits after March 1, 1996:

Pursuant to section 12(5)(b) of the Schedule, Allstate is not required to pay benefits beyond 156 weeks unless Mrs. Peterson establishes that the injury she sustained in the motor vehicle accident continuously prevents her from engaging in any employment for which she is reasonably suited by education, training or experience.

Mrs. Peterson was 37 years old at the time of the motor vehicle accident. She had a grade eight education. Besides three year's full-time work at the Big Boy restaurant, she had worked as a sales clerk in a wine store and in a greeting card store. She had also done some light factory work. She never earned more than the statutory minimum wage. She liked working as a waitress because she liked working with people.

I find that any full-time job which involves working with people, which requires minimum education and which Mrs. Peterson is physically capable of doing is suitable employment. I have found that Mrs. Peterson is not physically capable of standing on her feet all day and being a waitress. The question is what kind of work is Mrs. Peterson physically capable of performing.

Immediately after Allstate terminated weekly income benefits, Mrs. Peterson enrolled in adult education upgrading. She drove to school and attended from 8:45 a.m. to 3:00 p.m. with one-half hour for lunch and two breaks. She attended daily from the autumn to June. She obtained her grade 12 diploma after two years.

In Henriques and Motor Vehicle Accident Claims Fund (December 12, 1996), OIC A96-000037, 1996 I considered the burden of proof in claims for benefits pursuant to section 12(5)(b). I wrote:

In my opinion, the insured has the legal burden of proving that he is prevented from engaging in suitable employment. This burden only plays a part in the process where the evidence leaves the arbitrator in a state of uncertainty. The insured also has an evidential burden to prove that he is prevented from engaging in suitable employment. The evidence must address the test set out in section 12(5)(b) of the Schedule. If it is credible and unopposed it is likely that the arbitrator will decide that the insured meets the test. However, if the insurer raises the issue that there is specific employment which is suitable for the insured and which the insured can engage in, the insurer has the evidential burden of proving that such is the case. If the insurer satisfies this evidential burden, the evidential burden is cast upon the insured to adduce evidence that the employment is not suitable or that he cannot do it, otherwise he will lose on that issue and will not meet the test set out in section 12(5)(b).

I heard very little evidence on the issue of Mrs. Peterson's ability to engage in suitable employment. I find that Mrs. Peterson has the physical ability to successfully attend high school full-time. Coupled with the requirements that a suitable job pay statutory minimum wage, require minimal education and involve working with people, I find that many jobs would be suitable for Mrs. Peterson. She testified that she applied for a sales/cashier position at Zellers Department Stores at the end of 1994. At that time, she had only a grade eight education and I assume therefore that she was qualified for that work. I find work such as a sales person or cashier is suitable employment. I am not satisfied that Mrs. Peterson has met the evidential burden on her of proving that she was disabled from any suitable employment after March 1, 1996.

Section 6 claim for transportation and school-related expenses:

The physiotherapist at the Canadian Back Institute described Mrs. Peterson as a tense individual and that tension exacerbated her pain. Mr. and Mrs. Peterson, Liz Cornies and Laurie Terron testified about the frustration that Mrs. Peterson experienced because she could not function at the same energy level as before the accident. This was confirmed by Dr. Teasell, a physiatrist. In his report to Mrs. Peterson's lawyer. He wrote:

This case is complicated by the fact that she was a hard driving perfectionist type individual and is having a great deal of difficulty now coping with her inability to function at her previously high level. These individuals typically tend to engage in a pattern of doing too much on the good days resulting in marked exacerbation and pain. The key is pacing and that involves a certain amount of acceptance of their, something they have difficulty doing.[sic] She admitted that. Acceptance often is accompanied by significant levels of anxiety and depression which then in turn can aggravate the pain.

I find that Mrs. Peterson suffered from anxiety, stress and frustration as a result of not being able to work as hard as she could in the past.

All the doctors who were aware of Mrs. Peterson's return to school encouraged her. Dr. Koppert reported that the focus of treatment should be on maximizing Mrs. Peterson's functional rehabilitation. He encouraged her to return to a normal lifestyle and recommended active treatment which did not heighten her perception that she was disabled.

Most of the claim for rehabilitation is for transportation to and from school at $ .30 per kilometre. Reasonable expenses for transportation to and from training sessions are allowed under section 6(1)(d) of the Schedule.

I find that Mrs. Peterson's return to school was a reasonable way of dealing with the anxiety, stress and frustration caused by her inability to work as hard as she had in the past. I also find that the costs associated with this rehabilitation were reasonable. I therefore allow $2,507.34 for transportation to and from school. Included in this amount is 617 kilometres for transportation to and from various hospitals. I allow a further $6.75 for parking and $65 for tuition. Although the parties mediated the issue of vocational rehabilitation, Mrs. Peterson did not present Allstate with particulars of these expenses until this hearing. Accordingly, these amounts were not overdue within the meaning of section 24 of the Schedule at the time of the hearing.

Services provided by Liz Cornies:

Section 6(1)(d) of the Schedule provides that the insurer will pay reasonable expenses for other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.

For most of 1996, Liz Cornies, a registered nurse and acupuncturist, treated Mrs. Peterson for generalized pain and stress by applying a light emitting machine to various points on the body. Every second week, Ms. Cornies saw Mrs. Peterson daily for five days for one to one-and-a-half hours per day. She charged $25 per week for this service. Mrs. Peterson found it helpful but stopped after about one year because she could no longer afford it.

Mrs. Peterson paid for these sessions out of her own pocket at a time when she was in financial need. I accept her evidence that the sessions were helpful.

Even though the Canadian Back Institute and Dr. Koppert warned that after time, the use of passive treatments heightened the patient's perception of disability and discouraged a return to work, I am not satisfied that the services provided by Ms. Cornies promoted a disability mentality. Mrs. Peterson's family doctor thought that Mrs. Peterson was trying to do her best and I find that she tried to make the best of her abilities. I find that the treatment provided by Ms. Cornies decreased Mrs. Peterson's stress and pain and that the cost was reasonable. However, I find that about one-half of the treatment was for conditions and stress not attributable to the motor vehicle accident, such as the stress Mrs. Peterson suffered from providing care to her terminally ill mother-in-law. Accordingly, I allow $435 under this heading, which is one-half of Ms. Cornies' account of $870. Again, although the matter was mediated, Mrs. Peterson did not provide Allstate with particulars of the claim until the hearing. Therefore, the amount was not overdue within the meaning of section 24 of the Schedule at the time of the hearing.

Expenses:

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

Order:

1. Allstate shall pay the Applicant weekly income benefits pursuant to section 12(1) of the Schedule from October 31, 1994 until March 1, 1996 together with interest calculated in accordance with section 24 of the Schedule.

2. Allstate shall pay the Applicant transportation and tuition expenses in the amount of $2,579.09 pursuant to section 6 of the Schedule.

3. Allstate shall pay the Applicant $435 pursuant to section 6(1)(f) of the Schedule for services provided by Liz Cornies.

September, 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. 2Foden v. Co-Operators Insurance Association, [1978] I.L.R. Para. 1-1045 (S.C.O.), per Reid J.