Jolanta Chudy v. West Wawanosh Mutual Insurance Company, 1997 ONICDRG 17

ONTARIO INSURANCE COMMISSION

Neutral Citation: 1997 ONICDRG 17

OIC A96-000924

BETWEEN:

JOLANTA CHUDY

Applicant

and

WEST WAWANOSH MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Jolanta Chudy, was injured in a motor vehicle accident on January 1, 1992. She applied for and received statutory accident benefits from West Wawanosh Mutual Insurance Company ("West Wawanosh"), payable under Ontario Regulation 672.¹ West Wawanosh teminated weekly income benefits on January 1, 1995. Mrs. Chudy returned to work after her benefits were terminated and claims entitlement to benefits during two periods of absence from work. The parties were unable to resolve their disputes through mediation and Mrs. Chudy applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mrs. Chudy entitled to weekly income benefits under section 12 (5)(b) of the Schedule for the periods November 24, 1995 to January 8, 1996 and May 16, 1996 to June 10, 1996?

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

Result:

1. Mrs. Chudy is not entitled to weekly income benefits under section 12 (5)(b) of the Schedule.

2. Mrs. Chudy is entitled to her expenses incurred in respect to the hearing.

Hearing:

The hearing was held in London, Ontario, on December 5, 1996, before me, Beth Allen, Arbitrator.

Present at the Hearing:

Applicant:

Jolanta Chudy

Mrs. Chudy's Representative:

Joseph Masterson

Barrister and Solicitor

West Wawanosh's Representative:

Peter Maurer

President, Claims Adjuster

Witnesses:

Jolanta Chudy

Exhibits:

Exhibit 1 Medical Brief of Jolanta Chudy

Caselaw Authorities:

At the hearing, Mrs. Chudy submitted a bound brief of case law (five cases). Under cover of a letter dated December 10, 1996, she submitted to the Commission and to Mr. Maurer a further case, Crooks v. Wawanesa Mutual Insurance Company, (1996) 1996 CanLII 8036 (ON CTGD), 30 O.R. (3d) 244 (Ont. Ct. Gen. Div.).

At the hearing West Wawanosh submitted case summaries for the following Commission arbitration decisions: Rene G. Lafleur and Zurich Insurance Company (May 11, 1995), OIC A-004141; William J. Whyte and Metropolitan Insurance, (April 30, 1996), OIC A-009277; and Carole A. Caruso and Guarantee Company of North America (May 9, 1996), OIC A-006856.

Evidence and Findings:

Overview:

After her motor vehicle accident, Mrs. Chudy was absent from work for three years, returning to work on January 13, 1995. She was again absent from work from November 24, 1995 to January 8, 1996 and then from May 16, 1996 to June 10, 1996. Mrs. Chudy claims that during her returns to work her accident-related injuries continuously prevented her from performing her job; and further, that her disabilities continued, during her periods of absence, to impede her from returning to work.

West Wawanosh was not represented by counsel, but was represented by the president of the company. He did not raise the issue of the effect on Mrs. Chudy's claim of section 16 (2) of the Schedule. Mrs. Chudy's counsel raised this issue, submitting that Mrs. Chudy is not precluded by this provision from making her claim.

Factual Background:

Mrs. Jolanta Chudy, age 34, was born in Poland and after living in Germany for one year immigrated to Canada in 1988. She is married with two children - a daughter aged eleven and a son aged four.

While living in Poland Mrs. Chudy completed a four-year college course in accountancy. For seven years she worked as an accountant in the finance department of a train company. She also worked as a singer and musician in Poland.

Mrs. Chudy's first job in Canada was working part-time for Service Master as an office cleaner. In 1990, she began working for Siemans, a manufacturer of electrical motors, as an assembly line worker. She was working at this job at the time of the accident and continues to work there. She also worked at her part-time job as an office cleaner until the accident.

Mrs. Chudy was involved in a motor vehicle accident on January 1, 1992. She was proceeding through a green light when a car, approaching from the right, ran a red light and struck her car on the passenger's side. As a result she suffers pain in her mid-back, neck and shoulders which later spread to her lower back and legs. She has also suffered from severe headaches since the accident.

The parties agree that West Wawanosh paid Mrs. Chudy weekly income benefits for 156 weeks, from January 8, 1992 to January 1, 1995. She started back at Siemans full-time on January 13, 1995. For an eight-week period before her return, Mrs. Chudy was involved in a modified work program, recommended by West Wawanosh, where Siemans gradually increased her work hours until she was prepared to work an eight-hour day.

Mrs. Chudy testified that since her return to work she alternates between jobs on the assembly line and a job in Statistical Process Control (quality control)². She described the assembly line jobs as light. They require her to stand, to twist her body, to sit and to do some walking around. She works at the Statistical Process Control position for about three hours per eight-hour shift. It is a less demanding job. She stressed that this position offers her much-needed relief from the assembly line. Mrs. Chudy testified that she normally works eight-hour days but has to take Tylenol II approximately every two hours for pain. On a few occasions, she has not been able to complete a work day due to headaches and body pain. She explained that she has an understanding employer who has allowed her to go home early, to work reduced hours and to rest when she does not feel well. Mrs. Chudy stressed that, however difficult, she attempts to work through the pain because she does not want to lose her job. Moreover, she feels that it is psychologically more beneficial for her to work than to remain at home.

Mrs. Chudy also indicated that she has been attending a course through her current employer - a quality assurance course (similar to quality control) offered through Fanshawe College, and funded by her employer. Over the past two years she has completed seven credits out of the ten credits required to obtain a certificate.

Mrs. Chudy described the circumstances that led up to her absences from work during both periods.

On November 24, 1995, Mrs. Chudy went to work but was only able to remain for two or three hours. She went home early and collapsed. She could not feel her legs and arms, had difficulty breathing and suffered generalized bodily pain, but she remained conscious. Her husband called an ambulance which took her, hyperventilating and shaking, to Victoria Hospital. The hospital examined her and discharged her a few hours later, in stable condition.

Mrs. Chudy returned to work on January 8, 1996. She testified that she resumed her previous job. She indicated that although she continued to take pain medication, her headaches, fatigue, back and leg pain persisted. On a few occasions, between her return to work and her next period of absence, she was either absent from work or left early due to pain.

On May 16, 1996 Mrs. Chudy commenced work at 3:00 p.m. and worked seven or eight hours. She testified that she felt severe pain that day despite intermittently taking pain medication. As the day progressed, her pain increased. At one point she left the assembly line, her legs gave way and she collapsed, hyperventilating. An ambulance took her to Victoria Hospital where she arrived at 8:45 p.m. The ambulance call report dated May 16, 1996 indicates that when the ambulance attendants arrived she was alert, breathing normally and in minor discomfort, but complained of extremity numbness and severe head and neck pain. The hospital discharged her after a few hours.

Mrs. Chudy returned to work on June 10, 1996. She testified that she returned to the same job and since then has worked through her pain by persevering, taking pain medication, doing stretch exercises and undergoing massage treatment. She stressed that she tries in every way to help herself.

Neurological tests conducted after the first episode were negative. Neurologist, Dr. Arthur J. Hudson, in his report dated December 18, 1995, diagnosed post-traumatic syndrome. Dr. Thomas A. Miller of the St. Joseph's Health Centre, in several reports including his November 20, 1995 and his January 26, 1996 reports, diagnosed Mrs. Chudy's condition as chronic pain syndrome and depression. Dr. Anna Francis, Ms Chudy's family doctor, recommended that she not return to work until January 8, 1996. In her report dated November 7, 1996, Dr. Francis diagnosed post-traumatic stress disorder and recommended a psychiatric assessment.

Legal Analysis:

Mrs. Chudy raised the issue of whether section 16 (2) of the Schedule affects her right to claim benefits. West Wawanosh made no submissions on this issue. Mrs. Chudy submitted that section 16 (2) of the Schedule is not a bar, although her claim is with respect to periods more than ninety days beyond the two-year anniversary of the accident. Section 16 (1) and (2) state:

16.--(1) Subject to section 15 and subsection (3), a person receiving a benefit under this Part may attend school or accept, or return to, work at any time during the first two years following the accident for any period of time without affecting his or her benefits under this Part if, as a result of the accident, he or she is unable to continue at school or in the occupation or employment.

(2) Subject to section 15 and subsection (3), after the two year period referred to in subsection (1), a person receiving a benefit under this part may attend school or accept, or return to an occupation or employment for periods of up to ninety days without affecting his or her benefits under this Part, if he or she as a result of the accident, is unable to continue at school or in the occupation or employment.

Mrs. Chudy relied on a Commission arbitration case, Lafleur and Zurich Insurance Company,³ , which held that because section 16 (2) is phrased in the negative, it does not automatically prevent a person from claiming benefits. It gives rise to a rebuttable presumption that the person is no longer disabled. In the Lafleur case, Senior Arbitrator Rotter found that the applicant could seek to rebut the presumption by calling evidence to establish substantial disability.

I agree with Senior Arbitrator Rotter's reasoning and therefore accept Mrs. Chudy's position that section 16 (2) does not automatically prevent her from making her claim. Mrs. Chudy is therefore entitled to establish her entitlement under section 12 (5)(b) of the Schedule.

Section 12 (5)(b) provides:

12--(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.

[emphasis added]

Commission arbitrators have considered the difference between the disability tests in section 12 (1) and section 12 (5)(b) of the Schedule. Decisions have held that the disability test to be met by applicants under section 12(5)(b), for the post-156 week period, is more onerous than the test under section 12 (1) for the pre-156 week period.⁴ The post-156 week test requires that applicants show that their accident-related injuries continuously prevent them from engaging in any occupation or employment for which they are reasonably suited by education, training or experience; while the pre-156 week test contains the less weighty requirement that applicants establish substantial inability to engage in the essential tasks of their pre-accident employment. In order for Mrs. Chudy to succeed in her claim she must show that, during her two periods of absence from work, she was continuously prevented by her injuries from engaging in any reasonably suitable employment.

Several Commission arbitration decisions have dealt with the burden of proof issue as it relates to the post-156 week test. For instance, Senior Arbitrator Rotter held in the Riley and Pilot Insurance Company case⁵ that the insured has the burden to prove disability and benefit entitlement. Other arbitrators have considered what might be entailed in meeting this burden. Arbitrator Evans held that the applicant "must explore career options"⁶ and Arbitrator Seife determined that applicants should try to identify some suitable employment, describe the physical demands of the work and demonstrate with credible evidence that their injuries continuously prevent them from engaging in such employment.⁷

I agree with these arbitration decisions and conclude that Mrs. Chudy has the burden of establishing her disability and entitlement to benefits. I further conclude that, in meeting this burden, factors that might be considered are Mrs. Chudy’s attempts to explore reasonably suitable employment, and evidence that her injuries have continuously prevented her from engaging in this employment.

I find that Mrs. Chudy did not succeed in meeting the burden of proof. She presented little persuasive evidence of the effect of her medical condition on her employability.

Mrs. Chudy's Ability to Engage in Reasonably Suitable Employment:

While the pre-156 week test is restricted to a consideration of the pre-accident job, the post-156 week test is not. The pre-accident job at Sieman's, however, can be viewed, along with other prospective jobs, as potentially suitable employment. In this case, Mrs. Chudy’s evidence centres exclusively on her pre-accident job at Siemans. Her position is that during her periods back at work, after the 156-week period, her medical conditions persisted in preventing her from doing her job and continued to disable her during her two periods off work.

In making her case, Mrs. Chudy relied on a number of court cases⁸ which have held that an applicant who has returned to work and has worked for a period of time can, nonetheless, be found to be disabled or prevented by his or her injuries from doing his or her job. However, I find that Mrs. Chudy did not provide persuasive evidence that her injuries prevented her from performing her job.

Mrs. Chudy worked for nearly one year after West Wawanosh terminated her benefits. She then had six-week and three-week periods of absence, which periods were separated by an approximate five-month interval, before her final return to work on June 10, 1996. By the time of the hearing Mrs. Chudy had been back to work for about five months. Mrs. Chudy's medical evidence and testimony were basically limited to descriptions of her condition during the episodes leading up to her two periods of absence. Her health care practitioners provided diagnoses of her condition. Mrs. Chudy presented evidence of her difficulties in performing while on the job after her returns to work. She attempted in her testimony to link her difficulties at work to her medical condition. She testified that since her returns to work, she works eight-hour shifts. She emphasized that she is in severe pain while at work, but takes medication to alleviate the pain. Mrs. Chudy also indicated that during each shift she alternates between more and less demanding tasks. Her supervisor is understanding and at times allows her to rest. Mrs. Chudy's evidence is that during both return-to-work periods she has been absent or has left work early only a few times.

Mrs. Chudy argued that despite her perseverance, the evidence of her difficulties on the job establishes that her injuries continuously prevented her from doing her job.

I accept that it is possible for an applicant to return to work for a period of time and be disabled or prevented from doing his or her job. However, whether the applicant is prevented from doing his or her job is a question of fact to be proved. When a person returns to work and remains there for a period, the reasonable presumption is that he or she is able to do his or her job. This presumption, however, can be rebutted by evidence to the contrary. In my view, Mrs. Chudy did not satisfactorily rebut the presumption.

Given her relatively lengthy periods back at work, and the fact that she is currently working at Siemans, Mrs. Chudy would have had to adduce much stronger evidence of her incapacity to perform her job. It might have been helpful to hear evidence from her supervisor and/or co-workers about her work performance after her returns. Evidence from her medical practitioners substantiating that her injuries prevent her from doing her job during her returns to work might have strengthened Mrs. Chudy’s testimony. Mrs. Chudy testified credibly about the pain and discomfort she experienced at work, but she did not sufficiently show her incapacity to perform her job. Commission arbitration decisions⁹ have held that pain and discomfort, while compensable under the tort system, are not compensable under the statutory accident benefits scheme. The purpose of the statutory accident benefits scheme is to compensate for pain only to the extent that the pain results in the statutorily prescribed level of disability.

A finding that Mrs. Chudy was able to perform her job at Siemans is sufficient to find that she did not meet the post-156 week test. However, even were Mrs. Chudy to have persuaded me that her injuries prevented her from performing her Siemans job, she would not have satisfied the test. I heard no evidence of Ms Chudy's ability to engage in other reasonably suitable employment. This is an express requirement of the post-156 test. She might have led evidence that she has considered other suitable employment or turned her mind to a possible career change. Nor did West Wawanosh bring evidence of other reasonably suitable employment for Mrs. Chudy.

Mrs. Chudy's benefit claim is restricted to the two periods of absence from work. In this regard, she also failed to establish that her accident-related disabilities continued during these periods to prevent her from engaging in reasonably suitable work. Her time off work does not automatically prove an incapacity to perform a job. Again, Mrs. Chudy would have had to produce clearer evidence that during her time off, her medical condition prevented her from engaging in reasonably suitable employment. Mrs. Chudy’s case might have been strengthened by family members and friends testifying as to the effect Mrs. Chudy’s injuries had on her abilities.

Conclusion:

Mrs. Chudy did not meet the burden of showing that the injuries from her motor vehicle accident continuously prevented her from engaging in any employment for which she is reasonably suited by education, training or experience. I therefore conclude that Mrs. Chudy is not entitled to receive weekly income benefits for the periods November 24, 1995 to January 8, 1996 and May 16, 1996 to June 10, 1996.

Expenses:

Mrs. Chudy claimed her expenses incurred in respect of the arbitration. While she did not succeed in her claim, her case is not entirely without merit. She presented credible evidence of her determined attempts re-establish herself at her pre-accident job. I therefore exercise my discretion under section 282 (11) of the Act to allow her her expenses.

Order:

1. Mrs. Chudy is entitled to her expenses incurred in respect of the arbitration.

January 23, 1997

Beth Allen 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 Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2There seems to be evidence that the job Mrs. Chudy returned to after benefit termination might have involved less Statistical Process Control work. However, this, in my view, makes no difference to my ultimate decision that she failed to meet the post-156 week test, since I find her post-accident job to be reasonably suitable.
3. 3Rene G. Lafleur and Zurich Insurance Company (May 11, 1995), OIC A-00414. In this case the applicant worked in excess of 90 days after the two-year anniversary of the accident. Unlike the case before me, the applicant in this case returned to work and ceased work again within the pre-156 week period and was unemployed at the time of the hearing.
4. 4See for instance Sandra Singh and State Farm Mutual Automobile Insurance Company (May 8, 1995). OIC A-005714.
5. 5Sharon Riley and Pilot Insurance Company (April 15, 1996), OIC A-007940.
6. 6Michael Gagnon and Jevco Insurance Company (May 1, 1996), OIC A-015357.
7. 7Danny M. Wigle and Royal Insurance Company of Canada (January 12, 1996), OIC A-012312.
8. 8Mrs. Chudy relied on the following court cases to support her submission that although she was back at work she continued to be disabled from performing her job: Crooks v. Wawanesa Mutual Insurance Company, (1996) 1996 CanLII 8036 (ON CTGD), 30 O.R. (3d) 244 (Ont. Ct. Gen. Div.); Cohoe v. Safeco Insurance Company of America, [1993] I.L.R. 2378 (Ont. Ct. Gen. Div.); Foden v. Co-Operators Insurance Association (Guelph), (1978) 1978 CanLII 1622 (ON HCJ), 20 O.R. (2d) 728 (Ont. H.C.J.). Each of these cases were decided under the pre-OMPP no-fault scheme. This scheme contained a disability test for the post-104 week period which was worded similarly to the post-156 week test under the Schedule.
9. 9See for instance, the Lily Steele and Zurich Insurance Company (December 3, 1992), OIC A-001024 case.