Neutral Citation: 1997 ONICDRG 178

OIC A-006854

BETWEEN:

ISABELLA QUATTROCCHI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

The Applicant, Isabella Quattrocchi, was injured in a motor vehicle accident on January 29, 1991. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under Ontario Regulation 672.¹ State Farm terminated weekly income benefits on November 27, 1992. The parties were unable to resolve their disputes through mediation and Mrs. Quattrocchi applied for arbitration under the Insurance Act, R.S.O. 1990, c.l.Sj as amended.

The issues in this hearing are:

Is the Applicant entitled to weekly income benefits under section 12 of the Schedule after November 27, 1992?
Is the Applicant entitled to supplementary medical and rehabilitation benefits under section 6 of the Schedule for treatment and reports provided by Elite Physical Therapies and Associative Rehabilitation Inc.?
Is the Applicant entitled to the return of the Insurer assessment paid pursuant to Arbitrator Seife's order?

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

The Applicant is entitled to weekly income benefits under section 12(1) of the Schedule between November 28, 1992 and January 29, 1994, with interest under section 24 of the Schedule. She is not entitled to benefits after January 29, 1994 under subsection 12(5)(b) of the Schedule.
The Applicant is not entitled to further supplementary medical and rehabilitation benefits.
The Applicant is not entitled to a return of the Insurer's assessment. The Applicant is entitled to her arbitration expenses.

The hearing was held in London, Ontario, on October 7, 8, 9 and 10, 1996 and the parties' submissions were heard by telephone conference on January 13, 1997.

Present at the Hearing:

Applicant:

Isabella Quattrocchi

Mrs. Quattrocchi s Representative:

Louis J. Crowley Barrister and Solicitor

State Farm s Representative:

Nigel G. Gilby Barrister and Solicitor Shelley Hopkins (first day only)

State Farm's Officer:

Eric Hey (first day only) Terry O'Quinn (second, third and fourth days)

Witnesses and exhibits are listed in an Appendix to the decision. The oral evidence was recorded by Mr. Fred Sharp, of Trident Reporting. Both parties also filed briefs of authorities.

Preliminary Issue: The Second Accident:

At the outset of the hearing on October 7, 1996, Mr. Gilby, counsel for the Insurer, requested an adjournment based on the Applicant's failure to produce State Farm's accident benefit file relating to her second motor vehicle accident on November 23, 1994.² On the Applicant's behalf, Mr. Crowley submitted that he gave Mr. Gilby authorization for release of the file some months ago, and assumed Mr. Gilby had obtained the file because he had not followed up with further requests for its production. Accordingly, I refused the Insurer's adjournment request but recessed the hearing in order to give Mr. Gilby an opportunity to review the file. The recess also gave Mr. Crowley an opportunity to review the Insurer's accident benefit file relating to the Applicant's first accident, which the Insurer had not yet produced, despite the order of the pre-hearing Arbitrator.

After the break, Mr. Gilby renewed his request for an adjournment. He now advised that the Insurer's accident benefit file respecting the second accident contained a taped telephone conversation with the Applicant which had not yet been produced to the Applicant. I refused the adjournment request, since the delay in transcribing the tape was the Insurer's responsibility. I ordered Mr. Gilby to produce a transcript of the telephone conversation the next morning, which he did.

Mr. Gilby also submitted that the hearing should be adjourned until the Applicant completed mediation and commenced arbitration proceedings respecting the second accident. Alternatively, Mr. Gilby submitted that the Applicant should release the Insurer from liability pertaining to the second accident. Mr. Crowley denied having undertaken to commence proceedings with respect to the second accident, and submitted that the Applicant is entitled to choose which issues to bring to arbitration. I reserved on this question. At the outset of the second day of hearing, I ruled that any disputes arising out of the second accident are not in issue in this proceeding and that the hearing would proceed with respect to the first accident. My reasons follow.

As the second accident occurred after completion of the mediation and pre-hearing in this proceeding, the parties have not completed mandatory mediation³ with regard to that accident or discussed document exchange and other pre-hearing issues pertaining to the second accident. Accordingly, I found that the second accident was not properly an issue in dispute before me.

However, I was not satisfied that the hearing should be adjourned on this basis. The Insurer had known about the second accident since at least April 20, 1995, when Mr. Gilby wrote to the Commission seeking an adjournment because he had just learned about the second accident. The adjournment was granted. The Insurer subsequently obtained two medical-legal reports concerning the second accident.⁴

Moreover, Mr. Gilby was unable to produce any correspondence in support of his claim that Mr. Crowley had undertaken to commence mediation with respect to the second accident.⁵ At no time prior to the hearing did Mr. Gilby give notice that the Insurer would object to the matter proceeding until completion of mediation with respect to the second accident.

The Act permits the insured person or the insurer to refer any dispute about the insured person's accident benefits to mediation.⁶ If mediation fails to resolve the dispute, either party may commence a civil proceeding. The insured person also has the option of referring the matter to an arbitrator, but this option is not available to the insurer.⁷ In this case, the Applicant has commenced an arbitration proceeding with regard to the first accident, but not the second. I find that the Act allows her to make that choice.⁸ However, if the Applicant subsequently commences mediation and arbitration proceedings with respect to the second accident, she risks a finding that she abused the arbitration process by bringing two arbitration proceedings where one would more efficiently have disposed of her claims.

Evidence and Findings:

The Applicant's pre-accident employment and educational background

The Applicant, Isabella Quattrocchi, is 46 years old, married, and the mother of three grown children, two of whom still live at home. When she emigrated to Canada at about the age of 15, she had not completed Grade 8 in Italy. After moving to Canada, she worked as a presser in a laundry for about a year, followed by a few months as a sales clerk in a store selling lingerie and bathing suits. She began packing cookies for a large commercial bakery in 1966, and left there about 10 years later when her mother, who had been looking after her three young children, returned to Italy. The Applicant stayed home with her children until about 1988, when she began working a few hours a week as a part-time school lunchroom supervisor. This involved supervising elementary school children over their lunch period" as needed."

When the Applicant testified that she continued doing this job between Mondays and Wednesdays at the time of the accident on January 29, 1991, Mr. Gilby advised that the Insurer had not received prior notice about this employment. I heard no particulars about the Applicant's pay, job tasks or schedule as a lunchroom supervisor, and no Employer's Confirmation of Income form or other documentation was filed. I am not convinced that the Applicant worked at this job on more than an occasional basis in the year before the accident.

The Applicant began working as an in-store food demonstrator in 1988, switching companies the following year in order to get more hours. She worked up to three full days every week on Thursday, Friday and Saturday. There was little dispute about the Applicant's main job tasks as a demonstrator, which included:

delivering all required equipment to the store on Thursday;
setting up the demonstration table (microwave oven, frying pan or toaster oven, cutting board, knife, serving tray, food, utensils, and gloves);
cutting, cooking or otherwise preparing food for presentation;
approaching customers to try to interest them in tasting the product;
ensuring there was sufficient product available for purchase next to the demonstration table;
packing up the equipment and taking it home on Saturday; and
taking inventory on Saturday of the product used.

I assume the job also involved cleaning up as needed, though the Applicant gave no specific testimony on this point. I am not persuaded that questioning or advising parents about a child's possible food allergy was an essential part of the Applicant's job.

Physical demands of the job, over a shift of about seven hours, included prolonged standing, bending forward from the neck, and occasional lifting. The Applicant was also required to display the appropriate demeanour for a sales position.

The First Accident

On January 29, 1991, the Applicant was a front-seat passenger in the family car, driven by her husband, when they were rear-ended while stopped. The Applicant testified that she immediately felt a burning pain in her right shoulder and neck. However, she and her husband continued their journey to a nearby store. After returning home, the Applicant's pain got worse, and she attended at Victoria Hospital later that day, complaining of posterior neck pain radiating to the area between her shoulder blades, as well as a right frontal headache, and numbness on the right side of her face. She also complained about soreness on the right side of her throat when swallowing, which indicates substantial whiplash injury, according to Dr. Teasell. Cervical spine x-rays were normal, and the Applicant was discharged to the care of her family doctor, Dr. B. Ragula, with advice to use ice, rest in bed for two to three days, and avoid activity for seven to ten days.⁹

The Applicant first saw Dr. Ragula about her accident injuries on February 5, 1991. She complained of a headache and neck pain radiating to both shoulders. Dr. Ragula found that the Applicant's neck mobility was restricted to about 25% of normal. He prescribed analgesics and referred her to Hyland Institute of Hydrotherapy Physiotherapy Clinic ("Hyland"), where the Applicant received mostly passive treatments about two or three times a week for a year.¹⁰ Dr. Ragula also treated the Applicant with anti-inflammatory and anti-depressant medication. By February 7, 1991, the Applicant also began complaining about low back pain, and Dr. Ragula found that she had 3/4 normal low back mobility. I find no evidence to support the Insurer's suggestion that Dr. Ragula's clinical note with respect to the Applicant's low back complaint was added to his chart at a later date in order to bolster the Applicant's claim.

Although the Applicant's subjective complaints and range of motion have reflected the usual ups and downs on subsequent visits, Dr. Ragula's testimony and records support the Applicant's testimony that she has experienced little improvement in her neck and shoulder symptoms and headaches since the accident.

Dr. Michael Hall assessed the Applicant at the Insurer's request on July 3, 1991. He felt that passive physiotherapy was not useful for her and should be discontinued. He agreed that the Applicant could not stand for a full shift, but he expected her to be able to return to work half time in three months.¹¹ However, Dr. Ragula certified in November 1991 that the Applicant remained disabled because she could not tolerate the prolonged standing and forward bending required in her job.¹²

In January 1992, the Insurer retained Westminster Rehabilitation Management ("Westminster") to assist with the Applicant's rehabilitation. Ms. Cathy Newton, Senior Vocational Counsellor, met with Dr. Ragula, who confirmed that the Applicant had plateaued as of July 1991, and supported a more aggressive program offered by Westminster Orthopaedic Rehabilitation Centre ("WORC"). Ms. Judith Lo, a physiotherapist at WORC, assessed the Applicant on February 3, 1992. She recommended physiotherapy initially directed at mobilization and strengthening of the Applicant's cervical spine, right arm and right shoulder girdle, as well as her low back. The Applicant attended three times a week. By April 1992, Ms. Lo felt that the Applicant's function had improved such that she was expected to be able to return to work about six weeks after coming back from her imminent vacation in Italy. The Applicant told her she did not think this would be possible.

The Applicant resumed therapy on June 1, 1992, after her return from Italy. Ms. Lo reported that after about 10 days of therapy, the Applicant had attained her pre-vacation level of functioning, and her range of neck motion was significantly improved. However, the Applicant denied any improvement in her symptoms, and continued to complain of headaches, neck and low back pain. Given the Applicant's complaints, Ms. Lo recommended another six to eight weeks of physiotherapy, accompanied by home exercises, a walking program, and a plan to increase the Applicant's activities of daily living.

Ms. Newton described her "walk and talk" program of meeting with the Applicant while walking together. She reported that the Applicant appeared to walk naturally and easily while distracted, but began displaying a number of pain behaviours when Ms. Newton commented on her ability to walk. Ms. Newton's opinion, which was shared by all the experts who examined the Applicant, was that the Applicant was focused on her pain rather than her functional abilities, and had "minimal insight" into the psychological elements of her condition.

The Applicant was discharged from the WORC program on August 28, 1992. Ms. Lo described her progress as follows:

Over the six months attendance at physiotherapy, Isabella has increased her range of motion motion in the cervical spine. There is still some limitation in left side flexion. She is lacking full extension, but other movements are within normal limits. She has certainly increased in muscle strength and tone, around the shoulder girdle and upper extremity area.

She is still complaining of fairly consistent pain around the right cervical area, radiating up into her head with headaches which are variable in intensity and seem to be precipitated by nothing in particular.

Although she has worked through the exercises in physiotherapy, she has gradually become less motivated to increase her functional activities at home, even although a structured program was organized for her.

Ms. Lo concluded that physiotherapy "has no more to offer Isabella." She testified that on discharge, the Applicant had functional strength in her shoulders and arm, and her low back pain was no longer an issue. The Applicant, however, reported that her symptoms got worse during her therapy at WORC. I accept Ms. Lo's evidence that the Applicant's functional level improved with activity.

On August 31, 1992, shortly after being discharged from WORC, the Applicant told Ms. Newton that she could not return to work and that Dr. Ragula had advised against her doing so. As Dr. Ragula had previously cleared the Applicant to return to work as of September 7, 1992, Ms. Newton met with him to clarify his advice. Dr. Ragula called the Applicant in Ms. Newton's presence to recommend that she return to work for a single shift on October 10, 1992. Dr. Ragula told the Applicant that returning to work would be in "her best physical and emotional interest." Ms. Newton reported that when she subsequently met with her, the Applicant's mood was "angry and accusatory." The Applicant was discharged from Westminster in November 1992. In her discharge report, Ms. Newton noted that without ongoing supervision, the Applicant's physical activity was "minimal," and she had become increasingly resistant to any suggestion that she could return to work despite her residual pain.

When Dr. Hall examined the Applicant again on November 19, 1992, he stated that the Applicant's "very prolonged period of further physiotherapy... has prolonged her manifested disability, delayed her return to domestic work and delayed her return to her employed activities." He now believed that the Applicant was fit to return to her pre-accident job and household activities.¹³

The Applicant's benefits were terminated effective November 27, 1992.

In January 1993, the Applicant returned to work for one shift, but she left after about an hour and a half. She has not attempted to return to work since that time.

In March 1993, the Insurer requested that the Applicant be examined by Dr. M. Lacerte, a physiatrist. Dr. Lacerte diagnosed mild soft tissue injuries of the cervical spine, right shoulder girdle and lumbar spine caused by the accident. However, he believed that she displayed pain behaviour and symptoms which were related to "psychosocial factors" and not to the accident. He reported that the Applicant's immediate return to her pre-accident job without restrictions would be the most therapeutic approach at the present time and would not be a source of physical harm."¹⁴

Dr. B. Deathe, another physiatrist, examined the Applicant on referral from Dr. Ragula in October 1993. He found significant loss of mobility in the Applicant's neck and right shoulder, and diagnosed soft tissue cervical sprain associated with the accident. He felt that the Applicant had received more than adequate physiotherapy, but recommended that she take muscle relaxant medication, lose weight, and see a chronic pain psychologist. Though he initially recommended a return to work on a half-time basis, he imposed the following restrictions on her when she provided further information about her job tasks:

Avoid prolonged or repetitive work at the shoulder or above shoulder level.
Avoid heavy push/pull activities.
Avoid repetitive resisted pinching, pulling, or gripping particularly with the right hand.
She should be allowed to sit or stand as required.

He added that it might be best if [the Applicant] focuses on the insurance company training her for an alternative type of low stress, sedentary job."¹⁵

In November 1993, the Applicant finally began seeing a psychologist, Dr. Owen Garrett, of McDonald & Bryant. Dr. Garrett saw the Applicant once or twice a month until April 1994, when he left the practice. He found that the Applicant was disabled from work "due to chronic pain syndrome with depression and anxiety which is directly related to her motor vehicle accident of January 29, 1991."

Dr. Garrett recommended that the Applicant continue treatment with his colleague, Dr. Robert Schnurr. She contacted Dr. Schnurr in August 1994 and began seeing him once or twice a month thereafter. Dr. Schnurr diagnosed chronic pain syndrome with depressed mood and mild driving anxiety. He did not expect the Applicant to be able to return to work.¹⁶

In November 1993, the Applicant also began physiotherapy treatment at Elite Physical Therapies (Elite) two or three times a week.

The Second Accident

On November 23, 1994, the Applicant was rear-ended again. Though her entitlement to benefits arising out of the second accident is not in dispute in this proceeding, I must consider the Applicant's condition in the period following the second accident in order to determine whether she continued to suffer any ongoing disability resulting from the first accident.

The Applicant saw Dr. Ragula on November 29, 1994, six days after the second accident. He reported that while her cervical range of motion had stabilized at less than 50% of normal by August 1993, she had only half that amount of flexion and extension after the second accident. The Applicant's low back symptoms were severely aggravated, with lumbar flexion reduced to 25% and flexion to 50%.¹⁷ Dr. Ragula prescribed further physiotherapy treatment, as well as Amitriptyline, Naproxyn and Talwin.

The Applicant was examined by Dr. Deathe again on December 21, 1994. It was his opinion that the second accident had aggravated the Applicant's symptoms and pain behaviours and she had now developed a "frozen neck." He also described "new symptoms of pain radiating to both wrists and down the left arm." Dr. Deathe expected that the Applicant's symptoms should settle down to their pre-November 23, 1994 level by February 1, 1995. He supported Dr. Ragula's suggestion of further physiotherapy but reiterated that "all treatment" should be "contingent on a vocational goal."¹⁸ In response, Dr. Ragula agreed that the Applicant needed retraining and psychological treatment as well as physiotherapy.¹⁹

In April 1995, Dr. Ragula reported that the Applicant still complained of neck pain radiating to both shoulders and arms, with numbness and tingling, severe headaches, and back pain radiating to both legs, with numbness and tingling. Dr. Ragula still believed that the Applicant could not "stay in the erect position for prolonged time, specially in any job requiring the flexion of her head." In a follow-up report dated May 8, 1995,²⁰ he said that the Applicant had not recovered to her pre-accident condition, as Dr. Deathe had expected she would.

The Insurer sent the Applicant to Dr. Deathe for an Insurer Medical Examination on July 10, 1995.²¹ In response to the Insurer's question about the Applicant's functional level before and after the second accident, Dr. Deathe said that his examination of the Applicant on July 10, 1995 "really was not much different, if any different" from the examination of October 26, 1994. By this time (July 14, 1995), Dr. Ragula also agreed that the Applicant was now "able to do her self-care and limited light household duties as she was doing immediately prior to November 23, 1994."²²

The Applicant was reassessed by Dr. M. Lacerte at the Insurer's request on July 26 and 28, 1995. He found that she was significantly worse psychologically than she was in March 1993, when he first assessed her, and attributed this to "learned helplessness and co-dependency with her current 'Therapists.'" He again noted pain behaviours, inconsistent test results, and voluntarily limited performance. He reiterated his earlier opinion that the Applicant could return to her pre-accident job without restrictions, and stated that doing so would be therapeutic for her. He did not believe that either accident had rendered her disabled, and felt her only organic injuries were a "mild musculoligamentous injury of the cervical spine and right shoulder girdle," and "possible musculoligamentous injury of the lumbar spine."²³

On the basis of these reports, the Applicant's benefits relating to the second accident were terminated after about five months.

Dr. Patrick J. Potter, a physiatrist, assessed the Applicant at the request of her counsel on August 17, 1995. On examination, he found no neurological signs, but the Applicant was tender and had restricted movement in her neck and lower back. He concluded that the Applicant was moderately disabled by chronic soft tissue pain and secondary sleep disturbance and depression. In his opinion, the injuries occurred in the first accident but were partially exacerbated by the second, especially the Applicant's left shoulder girdle pain. He did not expect the Applicant to experience any significant change in her pain or functional level, and felt that she had had "adequate trials of functional rehabilitation, therapeutic exercise, pushing to do things in spite of the pain and of pain management directly focused on the pain." Dr. Potter did not expect the Applicant to be able to return to her pre-accident job, but stated that there was "potential" for sedentary work involving flexible hours, no lifting above the shoulder, no repetitive lifting of the arms, limited sitting and standing (15-30 minutes), and the ability to change positions frequently.²⁴

In January 1996, Dr. Ragula referred the Applicant to Dr. Robert Teasell, a physiatrist. He also found tenderness and significant restrictions of range of motion in the Applicant's neck (less than 25% in all directions with significant guarding), shoulders (only 90 degrees of abduction with obvious guarding) and lower back (25% of normal extension, 25-30% lateral flexion and rotation, and flexion only to her knees). Dr. Teasell, like Dr. Potter, concluded that "the prognosis for return to work is not good;" physical restrictions would include: "no heavy lifting, pushing or pulling, working with the arms above the level of the shoulders, repetitive bending or twisting at the waist and prolonged sitting or standing." However, Dr. Teasell felt that the Applicant's physical and psychological problems rendered her "totally disabled." He recommended that she focus on regular rests, pacing her activities and walking. In his opinion, physiotherapy was helping the Applicant symptomatically, but she should be gradually weaned off it.²⁵

Dr. Teasell's assessment remained unchanged when he saw the Applicant in follow-up on May 1, 1996 and August 21, 1996, except that on the latter visit, the Applicant reported that she was now on a tranquillizer because of her worsening irritability and anger.²⁶ Dr. Potter's opinion was also unchanged when he saw the Applicant again on August 13, 1996, a year after his first assessment of her. He now stated that the Applicant would not be able to return to full-time work, even on a graduated basis, though "there may still be some potential for part-time employment." In the end, he felt that it was unlikely the Applicant would be able to return to gainful employment, given the persistence of her symptoms.²⁷

The Applicant's psychological problems have worsened. She continued to see Dr. Schnurr after the second accident, and his April 1995 report indicates that she was still complaining of memory, concentration and attention difficulties, interrupted sleep, depressed mood, and driving anxiety. Dr. Schnurr did not expect her to be able to return to work. He did not address the issue of the second accident in depth, but commented that the Applicant was disabled from most of the activities of daily living before and after the accident and probably could not have returned to work before the second accident.²⁸

Dr. Sid Freedman, a psychologist, assessed the Applicant at the Insurer's request on May 13, 1995. Dr. Freedman noted that the Applicant tended to "dramatize" her responses to the questionnaires she was given; however, he did not believe she was deliberately exaggerating her problems. He also stated that the Applicant was "quite pain focused" and had a low pain threshold. He criticized Drs. Garrett and Schnurr for focusing on supportive therapy. Dr. Freedman recommended a program of progressive muscle relaxation and gradually increasing the Applicant's daily activities, through Dr. Tony Iezzi, a psychologist.²⁹

The Applicant's counsel referred her to Dr. Iezzi in August 1996. Dr. Iezzi felt that the Applicant was severely depressed. He agreed with Dr. Freedman that she was pain-focused, and noted "hysteroid and hypochondriacal personality features." He recommended more aggressive use of antidepressant medication, as well as biweekly psychological management for at least another 9-12 months, "with a goal-oriented pain management focus." He did not endorse Dr. Freedman's recommendation of a progressive muscle relaxation program, because he did not think the Applicant would respond well to this. He did, however, recommend a weight loss and reconditioning program. Dr. Iezzi gave the Applicant a poor prognosis, since 5½ years had passed since the accident, but he stated that an aggressive treatment program would increase her chances for "returning to some type of employment and enjoying a better quality of life."³⁰

In his final report of September 1996, Dr. Schnurr stated that he continued to see the Applicant once or twice a month, and there had not been "a significant change in [the Applicant's] levels of reported pain or activity. There have been periods of improved mood but overall she continues to be dysthymic." Dr. Schnurr felt that monthly contact would now be appropriate to assess the Applicant's emotional condition and move her towards acceptance of her condition as chronic. He felt that more frequent treatment "would only serve to further entrench her in the therapist/patient role, one which she has been in now for several years."³¹

I accept the opinions of Dr. Deathe and Dr. Lacerte, who assessed the Applicant both before and after the second accident, that the Applicant's physical injuries had settled down to their pre-second-accident level by the end of July 1995. Consistent with their opinions was that of Dr. Potter, who stated in August 1995 that the Applicant's injuries mainly resulted from the first accident, and were partially exacerbated by the second. Although Dr. Potter and Dr. Teasell considered the Applicant totally disabled when they saw her after the second accident, they had not seen her before that accident, and the physical restrictions they imposed were the same as those imposed by Dr. Deathe in October 1993. There is no expert evidence indicating that the Applicant continued to experience significant physical injuries resulting from the second accident after July 1995.

I accept that the Applicant's psychological problems have continued to worsen since the second accident, but I am not convinced that the second accident significantly contributed to the Applicant's psychological problems for more than a few months. I find that the Applicant had developed the psychological elements typical of chronic pain syndrome well before benefits relating to the first accident were terminated in November 1992. As this is in many respects a typical chronic pain case, it may be useful to review the approach arbitrators have taken to chronic pain.

Chronic pain

A number of general principles have emerged in the arbitration decisions:

Pain on its own is not compensable in the statutory accident benefit scheme. Nor does a diagnosis of "chronic pain syndrome" guarantee entitlement.³² However, an insured may be found entitled to benefits because of disabling pain, despite there being no objectively confirmable impairment.
It is not necessary for an Arbitrator to accept any particular diagnosis of the Applicant's complaints, because the issue for the Arbitrator is whether the Applicant is substantially disabled from performing the essential tasks of her pre-accident job as a result of the accident. This requires a comparison of the insured person's functional ability before and after the accident. Arbitrators have shown little interest in debates between medical experts as to the legitimacy or significance of a diagnosis of "chronic pain syndrome." Arbitrator Draper has commented on this problem:

A major difficulty in chronic pain cases is that medical practitioners disagree about the assessment and treatment of long-term pain complaints. In this case, the two primary specialists, Dr. Clifford and Dr. Teasell, acknowledge that they have fundamentally different approaches. Both have impressive credentials, and explained their views clearly and forcefully.

Dr. Clifford takes a relatively narrow role in assessing patients. In his opinion, doctors have expertise in assessing physical limitations, not in evaluating limitations or employability based on subjective complaints of pain. He believes, therefore, that doctors should assess what the person is able to do safely. Based on this assessment, the person should be involved, as soon as possible, in a functional restoration program that focuses on increasing function, not reducing pain.

Dr. Teasell testified that while Dr. Clifford's approach is appealing, it does not work with all patients. In his view, pain must be managed and, therefore, the rehabilitation plan must balance the goals of increasing function and pain relief. Dr. Teasell testified that while he encourages his patients to be as active as possible, he advises them to be realistic about what they can handle. In [the applicant s] case, he did not feel that she would do well in an aggressive rehabilitation program. In his opinion, she needed to learn to pace herself, including the pace of her rehabilitation.³³

In this case, I heard from Dr. Teasell and from Dr. Potter, who takes a similar approach to chronic pain. I also heard from Dr. Lacerte, who shares Dr. Clifford's approach. As it is not my role to resolve this theoretical dispute or to recommend treatment for the Applicant, I do not find it necessary to choose between the experts different approaches to chronic pain.

Where there is no objective evidence of impairment, or the objective evidence does not explain the degree of pain reported by the insured person, the insured's credibility becomes important. In assessing the insured person's subjective pain complaints, Arbitrators consider all of the circumstances, including the consistency of the insured person's complaints and apparent functional level.
In order to prove entitlement to weekly benefits, an insured must show that her disability resulted from the accident. Arbitrators have consistently said that the accident need not be the only cause of the insured's problems, but must be a significant or material contributing factor. Accordingly, even if the Applicant's own attitudes or inaction have delayed her recovery, she may still be entitled to benefits, if the accident remains the more significant factor.
Where an insured person becomes deconditioned and depressed as a result of ongoing pain and disability, thus further delaying her recovery, she may be found entitled to benefits if the Arbitrator finds that the psychological elements of her condition are secondary to the injuries she sustained in the accident. Arbitrators have also recognized the "thin skull" principle in weekly benefits cases. On the other hand, insurers are not required to subsidize an insured person who takes the opportunity of an accident to leave the workforce and adopt an inactive lifestyle.
It is not sufficient to dismiss a chronic pain claim on the basis that returning to work would not harm the applicant:

After reviewing the medical evidence, I am left with the impression that the differences in the medical opinions relate as much to the philosophy and approach that each professional takes to soft tissue injuries, as it does to [the applicant s] particular situation. The dilemma that they all face is how to respond to chronic complaints of pain when there is no evidence of bony or neurological injury. The professionals supporting [the applicant s] claim, Dr. Walsh, Dr. Finestone and Ms. Gowen, seem to accept pain as a limiting factor, and are more accepting of therapy as a means of helping people deal with their pain. The orthopaedic surgeons, particularly Dr. Hall, express the view that although the pain is real, the best approach is to get the person back to work after a short period of physiotherapy. Dr. Hall emphasized that working through her pain could not harm [the applicant], and would probably help.

In my view, the test under section 12 of the Schedule, "substantial inability to perform the essential tasks of his or her occupation or employment", is not limited to a consideration of whether the person can perform his or her pre-accident job tasks without risking further injury. It requires an assessment of whether or not the person is reasonably able to return to his or her pre-accident work. As Dr. Finestone said in his testimony, the question in this type of case is always, how much pain is too much?³⁴

Nor is it sufficient to say that returning to work would be therapeutic for the applicant, as Dr. Lacerte suggested in this case. Whether work might be therapeutic is a distinct question from whether the Applicant is substantially disabled from returning to her pre-accident job.

Weekly benefits: Conclusion:

Applying these principles, I am satisfied that the Applicant remains disabled from returning to her pre-accident job as an in-store demonstrator, which requires prolonged standing and neck flexion over a seven-hour shift, while dealing with the public in a sales capacity.

The Applicant has made consistent complaints to her doctors about neck and shoulder pain and headaches, and has shown a fairly consistent restriction of neck and shoulder mobility. The main difficulties for the Applicant are the minor nature of the (first) accident, the surveillance evidence, her failure to comply with the experts recommendations for treatment and rehabilitation or to make a meaningful attempt to return to work.

The minor nature of the accident

The Applicant conceded that the accident of January 29, 1991 did not damage her vehicle. I accept Dr. Lacerte's evidence that since "we are physical beings," serious injury is more likely to follow a more forceful impact than a minor one. However, in my view, this general correlation is only one factor to be considered in determining whether a particular insured person is disabled as a result of the accident. People are different - physically and psychologically - and respond differently to the same event.

The surveillance evidence

I am troubled by the discrepancy between the Applicant's reported disability and her activities observed under surveillance in September 1992, throughout 1995, and in September 1996. The surveillance videotape shows the Applicant standing, walking, sitting, flexing and rotating her neck, and bending at the waist. Mostly, she walks to and from her car, gets into and out of her car, and drives. She appears to be going about her activities of daily living without discomfort or restriction. The most significant part of the videotape shows the Applicant scraping ice off her car in December 1995 without any sign of discomfort or restriction of movement.

However, the surveillance evidence does not show the Applicant in the position of prolonged standing and neck flexion required in her job as an in-store demonstrator. In fact, she generally appears to move as little as possible, and rarely raises either arm above the shoulder. Moreover, she appears to favour her right arm: although right-handed, she gestures, opens doors and manipulates objects with her left hand more often than her right, and holds her purse with her right hand. This is consistent with her claim of right-sided shoulder problems.

I am not satisfied that the discrepancy between the surveillance evidence and the Applicant's reported functional level reflects deliberate exaggeration or manufacture of her symptoms. As Ms. Newton reported, the Applicant was able to walk without any apparent problem until her attention was drawn to her abilities, at which time she began to display inappropriate pain behaviours, in obvious contrast to her previous performance. In my view, rather than suggesting that the Applicant is malingering, this corroborates the experts evidence that the Applicant has very little insight into her own behaviour or pain.

Motivation

The Applicant has shown little motivation to obtain appropriate treatment and rehabilitation. She explained that she refused Dr. O. Maryniak's recommendation that she have suboccipital corticosteroid injections for her headaches because the injections might only offer temporary relief. However, she received passive physiotherapy treatment from Hyland for a year, and now seeks further physiotherapy, despite her own testimony and expert opinion that it offers only temporary relief. At the same time, she has resisted suggestions that she increase her exercise and daily activity level. The Applicant has also persisted in overusing codeine-containing analgesics - especially Tylenol 2 and 3 - despite being told that this may be exacerbating her symptoms.

The Applicant has shown little insight into the psychological elements of her symptoms. When Ms. Newton gave the Applicant a book about chronic pain, the Applicant quit reading it after one chapter, stating that it was "boring." She resisted Dr. Ragula's recommendation that she try anti-depressants until June 1992, and refused his advice that she see a pain psychologist until late 1993.

I also think it likely that the Applicant's obesity (she weighs about 200 pounds, for a height of 4'11") and certain personality factors³⁵ are contributing to her complaints and delaying her recovery. However, in this case, I am not persuaded that these factors disqualify the Applicant from receiving benefits.

There is no question that personality and psychological factors are delaying the Applicant's recovery, and that her reported functional level and pain behaviours are out of keeping with the objective sequelae of the soft tissue injury she sustained on January 29, 1991. However, I have no doubt that she genuinely considers herself disabled as a result of this accident. Every medical and rehabilitation expert who has assessed her has commented on the significance of her passive and pain-focused approach to her injury, and her adoption of a dependent role with caregivers and family.

In this case, I am satisfied that the Applicant remains disabled from returning to her pre-accident job as a result of the physical and psychological sequelae of the accident. Moreover, while the Insurer submitted that the job could easily have been modified to accommodate the Applicant - for example by allowing her to alternate sitting and standing while she worked³⁶ - the Insurer offered no evidence to controvert the Applicant's testimony that demonstrators were not allowed to sit on the job, testimony which I find inherently plausible. Accordingly, the Applicant is entitled to weekly benefits of $185.60 per week until January 29, 1994, the three-year anniversary of the accident.³⁷

Post-156 week benefits:

After 156 weeks, the test for entitlement to weekly benefits changes: the Applicant must prove that the injury continuously prevents her from engaging in any job for which she is reasonably suited by education, training or experience.

In August 1995, Crawford & Company conducted an Employability Assessment at the Insurer's request. The assessor identified the following six occupations as suitable for the Applicant's educational background, vocational history and physical restrictions: customer service clerk, credit card clerk, telephone solicitor, press operator, electrical assembler and food and beverage order clerk. All were classified by the CCDO³⁸ as sedentary to light, offered comparable remuneration,³⁹ and a labour market survey showed "comparatively low ratios of [Employment Insurance] claimants to vacancies."⁴⁰

However, an Employability Assessment conducted by Associative Rehabilitation Inc. ("ARI") at about the same time, at the request of the Applicant's counsel, concluded that the Applicant was not competitively employable, even on a part-time basis,⁴¹ and would need pain management counselling and a work hardening program before she could undertake any competitive employment.⁴² In September 1996, ARI reported that the Applicant remained unable to return to competitive employment, despite receiving ongoing psychological counselling with Dr. Schnurr and ongoing physiotherapy with Cecile James, of Elite Physiotherapy.⁴³

The ARI assessment dismissed assembly positions on the basis that the Applicant had limited fine finger dexterity and poor grip strength. Dr. Deathe also recommended that the Applicant avoid "repetitive resistive pinching, pulling or gripping." I accept that the Applicant's problems with above shoulder work and repetitive reaching and gripping, especially with her dominant right hand, may make her unsuitable for assembly work.

I also accept that telephone solicitor work would not be suitable for the Applicant unless a headset were provided, because of the need for prolonged neck flexion. However, provision of a headset would seem to be a very easy, low cost accommodation entirely within the Applicant's control.

The ARI assessment also concluded that the customer service occupations identified by Crawford & Company were not suitable on the basis of an occupational therapist's conclusion that the Applicant could lift less than five pounds, even on a one-time only basis. (Occupations defined as sedentary or light could involve carrying, pushing and pulling of 10-20 pounds on a non-repetitive basis.) I am not satisfied that the Applicant's ability to carry, push, pull and lift is limited to less than five pounds, as no other expert who has assessed the Applicant has imposed such a severe functional restriction. Dr. Deathe recommended that she avoid "heavy push/pull activities" (emphasis added). Nor am I persuaded that customer service (sales and cashier) jobs require a "usual" lifting requirement of 1-25 pounds, and a one-time maximum lifting tolerance of 35-50 pounds, as stated in the ARI assessment.

I find that the main barriers to the Applicant's return to suitable sedentary or light work are her inability to tolerate prolonged static standing and prolonged neck flexion over a full shift. Her focus on pain and disability remains the most significant element of her situation. However, I do not accept that these restrictions continuously prevent her from engaging in suitable employment. I find that she would be capable of working at a broad range of part-time clerical or customer service jobs which are comparable to her pre-accident job but satisfy Dr. Deathe's restrictions of October 1993. Accordingly, she is not entitled to benefits after January 29, 1994.

Medical and rehabilitation benefits:

The Applicant has been seeing a psychologist monthly since November 1993, to no appreciable benefit. I accept Dr. Iezzi's explanation that she is not "cognitively-oriented." There is abundant evidence that the Applicant has developed very little, if any, insight into her problems and continues to resist any attempt to focus on her abilities rather than her pain and functional losses. I am not persuaded that further psychological counselling, either supportive counselling or pain management counselling, is likely to change this.

Nor am I persuaded that further physiotherapy is warranted. The Applicant attended for passive therapy at Hyland Clinic for about a year, followed by about six months at the more aggressive Westminster Orthopaedic Rehabilitation Clinic, which she claims aggravated her symptoms. She began attending at Elite in November 1993, shortly after Drs. Hall, Lacerte and Deathe recommended that she terminate all physiotherapy. I find that both passive and active physiotherapy have received more than adequate trials, and I am not satisfied that either is reasonable or necessary treatment for the Applicant.

Insurer's Assessment:

On June 11, 1996, Arbitrator Seife ordered the Applicant to pay the Insurer's Assessment of $1,000 on the basis that she had abused the dispute resolution process by failing to respond to the Commission's attempts to schedule a new hearing date following the second adjournment of this matter. Arbitrator Seife's order was not based on his assessment of the merits of the Applicant's case, and Mr. Crowley candidly conceded to me, as he had to Arbitrator Seife, the facts as outlined in the interim decision. I have heard nothing that persuades me to order the assessment returned to the Applicant.

Order:

The Insurer will pay the Applicant weekly benefits of $185.60 per week, under section 12(1) of the Schedule, between February 5, 1991 and January 29, 1994, with interest as set out in section 24 of the Schedule, less weekly benefits already paid. The Applicant's claim for weekly benefits after January 29, 1994 is dismissed.
The Insurer will reimburse the Applicant for her arbitration expenses, subj ect to the expenses Schedule. I may be spoken to as to any dispute about the amount payable.

September 29, 1997

Nancy Makepeace Arbitrator

Date

APPENDIX

Witnesses:

Ms. Isabella Quattrocchi, the Applicant

Dr. A. lezzi, psychologist

Dr. M. Lacerte, physiatrist

Ms. Cathy Newton, senior vocational counsellor

Dr. P. Potter, physiatrist

Ms. Judith Lo, physiotherapist

Dr. B. Ragula, the Applicant's family doctor

Dr. B. Deathe, physiatrist

Exhibits:

Exhibit 1

Medical Brief

Exhibit 2

Rehabilitation Brief

Exhibit 3

Income Tax Brief

Exhibit 4

Outstanding Treatment Costs

Exhibit 5

Application for Accident Benefits

Exhibit 6

1995 Income Tax Return

Exhibit 7

Report of ARI dated September 30, 1996

Exhibit 8

Mediation/Arbitration Forms

Exhibit 9

Report of Dr. M. Lacerte dated April 30, 1993

Exhibit 10

Report of Dr. M. Lacerte dated August 8, 1995

Exhibit 11

Psychological Report of Dr. Sid Freedman dated May 23, 1995

Exhibit 12

Hypothetical Employability Assessment from Crawford & Company Healthcare Management dated August 8, 1995

Exhibit 13

Automobile Claim Report

Exhibit 14

Report of Dr. A.B. Deathe dated March 20, 1995

Exhibit 15

Report of Dr. Michael C. Hall dated July 3, 1991

Exhibit 16

Report of Dr. Michael C. Hall dated November 19, 1992

Exhibit 17

Surveillance video tape #1

Exhibit 18

Surveillance videotape #2

Exhibit 19

Curriculum Vitae of Dr. Anthony lezzi

Exhibit 20

Curriculum Vitae of Dr. M. Lacerte

Exhibit 21

Curriculum Vitae of Dr. Patrick James Potter

Exhibit 22

Curriculum Vitae of Cathy M. Newton

Exhibit 23

Curriculum Vitae of Judith M. Lo

Exhibit 24

Original excerpt from Dr. B.D. Ragula's clinical notes, February 5, 1991

Exhibit 25

Dr. B.D. Ragula's clinical notes and records

Exhibit 26

Curriculum Vitae of Dr. A. B. Deathe

Exhibit 27