Neutral Citation: 1997 ONICDRG 220

OIC A96-000735

ONTARIO INSURANCE COMMISSION

BETWEEN:

Z. T.

Applicant

and

MISSISQUOI INSURANCE COMPANY

Insurer

DECISION

Issues:

Pursuant to the Schedule,¹ Z. T. was paid statutory accident benefits by Missisquoi Insurance Company ("Missisquoi") as a result of injuries sustained in an August 19, 1994 car accident. At the time of the accident, Z.T. was a part-time student at Wilfred Laurier University. She had returned to school in the fall of 1993, following the termination of her employment as a product assurance project manager at the end of 1992. Payment of weekly income replacement benefits ended on October 22, 1995. Z.T. disputed this termination. Mediation was unsuccessful in resolving this dispute, and Z.T. applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Insurance Act").

The issues in this hearing are:

1. Can Z.T. add as an issue the alleged failure of Missisquoi to comply with section 64 of the Schedule?

2. If Z.T. can add question #1 to this proceeding, did Missisquoi fail to comply with section 64, and if so, what if any, are the consequences?

3. Is Z.T. entitled to income replacement benefits from October 23, 1995, pursuant to section 8 of the Schedule?

4. Is Z.T. entitled to a lump sum education disability benefit pursuant to paragraph 16(1)(c) of the Schedule?

5. Is Z.T. entitled to payment of housekeeping and home maintenance expenses in the amount of $3,084.87, pursuant to section 55 of the Schedule?

6. Is Z.T. entitled to interest on overdue payments, pursuant to section 68 of the Schedule?

7. Is Z.T. entitled to add as an issue a claim for a special award under subsection 282(10) of the Insurance Act, and if so, shall a special award be granted?

8. Is Z.T. entitled to her expenses of this arbitration proceeding?

During the hearing, Z.T. withdrew her claim for payment of supplementary medical expenses.

Result:

1. Z.T. may not add as a separate issue in this arbitration proceeding the question of whether Missisquoi complied with section 64 of the Schedule.

2. Z.T. is entitled to payment of weekly income replacement benefits from October 23, 1995, together with interest on overdue payments in accordance with section 68 of the Schedule.

3. Z.T. is not entitled to a lump sum education disability benefit claimed pursuant to paragraph 16(1)(c) of the Schedule.

4. Z.T. is not entitled to payment of housekeeping and home maintenance expenses of $3,084.857, claimed pursuant to section 55 of the Schedule.

5. The issue of a special award shall be dealt with at a resumption of this proceeding.

Hearing:

The hearing was held in Kitchener, Ontario, on April 28, April 29, May 2, and June 12, 1997, before me, Lawrence Blackman, Arbitrator.

Present at the Hearing:

Applicant:

Z. T.

Z.T.'s Representative:

James E. Pitcher Barrister and Solicitor

Missisquoi's Representative:

Gordon L. Robson Barrister and Solicitor

Witnesses:

1. Z.T.

2. Ms. Theresa Bielawski.

3. Mr. David Wilkinson.

4. Ms. Brigitte Engel-Nevill.

Exhibits:

See Appendix "A."

Evidence and Findings:

1. Compliance with section 64

Following her 1994 car accident, Missisquoi paid Z.T. weekly income replacement benefits based on her employment with COM DEV between 1990 and 1992.

In July 1995, Missisquoi advised Z.T. that payment of her weekly benefits would end on July 30, 1995, subject to her written request for a Designated Assessment Centre ("DAC") referral. Z.T. requested such a referral by letter dated July 26, 1995.

Missisquoi subsequently arranged what it submits are DAC assessments with Dr. P. Grant and Dr. J. Shapiro. Upon receipt of their reports, Missisquoi advised Z.T. that it would not pay any further weekly income replacement benefits.

Z.T. submits that section 64 of the Schedule only allows Missisquoi to stop paying weekly income replacement benefits if the DACs state that she is "no longer suffering from a disability resulting from the accident in respect of which [her] weekly benefits are paid." Z.T. submits that Dr. Grant did not address the correct disability issue and that Dr. Shapiro's review was not a DAC assessment, and that therefore Missisquoi must continue to pay weekly benefits, regardless of the merits of her claim.

This issue is not noted in the Mediator's report of March 27, 1996, the Application for Arbitration dated April 27, 1996, or the pre-hearing letter of September 3, 1996. One of the express purposes of the pre-hearing discussion is to identify the issues in dispute in the arbitration proceeding. This is to avoid surprise at the hearing. In this case, the issues in dispute were again canvassed at the commencement of the hearing, notwithstanding which, the section 64 issue was not identified. This issue was raised by the Applicant for the first time in final submissions.

To allow this issue to be raised at this late stage would be extremely prejudicial to Missisquoi, and would violate the requirements of natural justice and fairness. I thus decline to add this issue as a separate entitlement question in this proceeding. However, the question of whether benefits were properly terminated by Missisquoi may also be relevant to the question of a special award, which is addressed below.

2. Income Replacement Entitlement Benefits

(a) Test

Section 8 of the Schedule entitles Z.T. to payment of weekly income replacement benefits during the period that she suffers substantial inability to perform the essential tasks of the employment in respect of which she qualified for such benefits, namely her job at COM DEV (pursuant to paragraph 7(1)(2) of the Schedule). The test is not whether Z.T. can return to "competitive employment" or whether she is "employable."

(b) Essential Tasks of Z.T.'s employment at COM DEV

Z.T. was a Product Assurance (P.A.) Project Manager at COM DEV between 1990 and 1992, responsible for ensuring the quality and reliability of its complex satellite programs. This required the planning, managing, implementing and monitoring of P.A. programs. A job description prepared concurrently with her employment indicated that the position (which required university education and management training) had important decision making responsibilities that directly contributed to the "financial, technical and schedule success of assigned projects" (including manpower allocation up to 20,000 hours per project), and required a "high degree of creativity, originality and self-reliance." Z.T. had direct supervisory responsibility for up to six quality engineers, and indirect supervisory responsibility over other employees.

The job description also notes that the employee has "little control over work pace and schedule . . . stress . . . comes from interfacing with a diverse number of people on project related issues, consensus building, implementing of procedures and guidelines . . . A large part of the job is influencing and persuading other managers."

I accept that this position was intellectually challenging. I further accept Z.T.'s evidence that her position required overtime, including weekends. I also accept the uncontradicted evidence that the job was stressful and that there was significant pressure from deadlines, responsibilities, and the internal conflict between the engineering and the quality assurance departments. I accept the Applicant's evidence that the position required prolonged sitting, and could involve considerable standing as well as walking to the production plant, the laboratory, and the offices of engineers and other personnel.

(c) Causation

(i) pre-accident condition

Missisquoi disputes that Z.T.'s ongoing complaints and alleged disability are related to this motor vehicle accident.

The pre-accident clinical notes of Z.T.'s then family doctor, Dr. P.M. Landy, indicate that while Z.T. was employed with COM DEV, he regularly saw her for significant and varied complaints including headaches, interscapular pain, nausea, vomiting, fatigue, chest pain, left arm and leg paraesthesia, and chronic back pain (which was made worse "when lying stiff at night"). Depression and suicidal thoughts were also noted.

Dr. Landy considered Z.T.'s headaches and back complaints specifically to be psychosomatic in nature and directly related to stress. Dr. Landy provided counselling, although he observed that Z.T. was not receptive to a psychological diagnosis, and was not very forthcoming as to her problems, which appeared to be work related. In February 1992, Dr. Landy certified a two and a half week period of disability due to back and chest pain, as well as headaches. Z.T. evidently, however, returned to work early. In May 1992, Dr. Landy noted that Z.T. "now admits that a lot of her problems are most likely psychological," but was unwilling to discuss the source of her psychological distress. She requested a referral to a psychiatrist, but there is no indication that the referral was made.

In September 1992, Z.T. was seen by Dr. D.B. Richardson for her mid-back complaints. Dr. Richardson noted a history of low back pain following a 1973 motor vehicle accident. He also recorded that Z.T.'s pain mostly occurred at rest, and was improved by activity (which differed from her post-accident complaints). Her sitting job was considered a possible cause of her pain. An exercise program was recommended, which was evidently pursued.

In late 1992, Z.T. was let go from COM DEV. Dr. Landy saw her for reactive depression. Despite noting suicidal thoughts, Dr. Landy felt that she was not "acutely depressed." In the subsequent weeks, Dr. Landy noted that Z.T. was doing "tremendously well since she was let go from work." He stated that "there is certainly no suicidal ideation." Although he believed her continuing back pain "undoubtedly has a psychosomatic nature," on Z.T.'s request, he referred her to Dr. Iwan, a neurosurgeon.

In January 1993, Dr. Iwan recorded back complaints from the shoulders down that were worse on sitting. Neck stiffness and spasm were also noted. Dr. Iwan's diagnosis was "fibromyositis or something of this nature." He queried whether stresses in her life were precipitating these difficulties. No treatment was recommended. Medication was not prescribed, as Dr. Iwan had the "distinct impression" she wouldn't take it.

Over the next 20 months, Z.T. saw Dr. Landy on only four occasions. In March 1994, Dr. Landy noted five tender fibromyalgic spots on her back. In April 1994, an "essentially normal" EMG was reported by Dr. K.J. Ho, who stated that "she has had an aching discomfort in the upper and mid back for which she was told this was caused by fibromyalgia. In the last two weeks or so, since the advent of warmer weather, the problem is now about 98% gone. Aside from the occasional joint pains in her hands, her health has been good." Her last appointment prior to the accident was in May 1994. Back and leg pain are noted. There is no mention of neck pain, headaches, depression, fatigue, or problems with memory or concentration. Z.T. was to attend "Backworks," but there is no indication that she actually attended for treatment at that or any other facility prior to this accident.

I have concerns about the Applicant's evidence regarding her pre-accident medical history. I find that she did not advise Ms. Brigitte Engel-Nevill, the caseworker assigned by Missisquoi, of the pre-accident complaints noted above, nor did she provide a fully accurate history to all of her post-accident medical practitioners. Her evidence in this regard was often evasive. Z.T. preferred a standard response that she was "fully functional" pre-accident, but when pressed on details which might contradict such a positive recollection, often relied on lapses of memory.

I therefore rely on Dr. Landy's clinical notes in finding that while Z.T. had some continuing physical complaints at the time of the accident, they were not then disabling. Rather than indicating that Z.T.'s condition was deteriorating prior to the accident, Dr. Landy's notes indicate that her medical condition had improved significantly following her departure from COM DEV.

Z.T. had requested assistance from the Special Services department of Wilfred Laurier University prior to the accident. Based on the lack of any entry by Dr. Landy of any request or medical recommendation for Special Services, I accept Z.T.'s uncontradicted evidence that her pre-accident contact with Special Services related to her significant absence from an educational institution, rather than any physical restrictions.

(ii) post-accident condition

Dr. Landy's first post-accident notation is August 22, 1994. The accident report shows that another motorist failed to give Z.T.'s car the right of way, causing both vehicles to be demolished.

Z.T. was taken by ambulance to Kitchener-Waterloo Hospital, which noted head, neck, chest, and back pain complaints. Dr. Landy's primary diagnosis was back and neck pain secondary to the accident. He noted that neck movements were markedly reduced and the whole back was extremely stiff. Dr. Landy was unsure when Z.T. might be able to return to work.

There are 20 notations by Dr. Landy over the next four months. Numerous emotional complaints are documented. On September 1, 1994, depression is recorded, and Amitriptyline (an antidepressant) is prescribed. Suicidal ideation is noted on September 9, 1994, poor memory on September 16, 1994, and "depersonalization" on September 23, 1994. Poor appetite and inability to concentrate are set out on September 30, 1994.

Ms. Engel-Nevill noted on December 6, 1994, that the treating physiotherapist, David Wilkinson (who began seeing Z.T. less than a week after the accident), believed that "psychological counselling needs to be addressed . . . and no form of therapy will be effective until the psychological aspect is addressed." Ms. Engel-Nevill also cited Dr. Landy's opinion that "years of psychological counselling will likely be required." Ms. Engel-Nevill however stated that both practitioners agreed that the emotional problems pre-existed the accident.

Over the next five months, Z.T. saw Dr. Landy ten times. In March 1995, Ms. Engel-Nevill reported that Dr. Landy agreed with her that there was very little difference between the Applicant's current complaints, and those noted by Dr. Iwan in January 1993 (more than a year and a half pre-accident). However, on cross-examination, Ms. Engel-Nevill admitted that in fact she was not aware of the specifics of Z.T.'s pre-accident medical history or psychological state.

In determining causation, Ontario Insurance Commission cases have adopted the "significant contribution" or "material contribution" tests. Senior Arbitrator Naylor (as she then was) held in E.Z² that an Applicant's problems resulted from the accident when she was persuaded that the accident was a major contributing factor to the Applicant's ongoing psychological problems. Like E.Z., I find that Z.T. was more vulnerable to "psychological insult, and that the effect of the accident may have been superimposed upon an underlying histrionic personality."

Based on Dr. Landy's detailed contemporaneous clinical notes, and the records of the other treating practitioners, I find that Z.T.'s immediate and subsequent post-accident physical and emotional state was significantly different from her condition the year before the accident in terms of the intensity, nature, and range of complaints. Although, as stated by the Insurer's orthopaedic specialist, Dr. R. Pototschnik, there may have an overlap in (my opinion some) symptoms, I find that this accident materially and significantly contributed to Z.T.'s post accident complaints, and accordingly I find that causation has been established.

(c) Substantial Inability

(i) The Insurer's evidence

The Insurer called as a witness Ms. Theresa Bielawski, an occupational therapist who had assessed Z.T. I found Ms. Bielawski to be both independent and objective. In February 1995, she found Z.T. to be "experiencing a partial inability to carry on normal daily activities in the home." She felt that Z.T.'s recovery was "influenced by the emotional factors, poor pain management, and dependency on medication and outside services," and that full recovery was not anticipated until those issues were resolved. Although Ms. Bielawski did not believe that Z.T.’s employability test results were valid because a full effort was not given, she testified that there was a genuine level of disability.

Ms. Engel-Nevill referred Z.T. in March 1995 to an insurer's orthopaedic examination with Dr. . Pototschnik, who diagnosed a soft-tissue neck and back injury. Dr. Pototschnik believed that Z.T. should be capable of returning to sedentary employment, but that the time frame for such a return depended on the completion of a work conditioning program and the outcome of a psychological assessment. Ms. Engel-Nevill testified that the work conditioning programme was never implemented.

In May 1995, Ms. Engel-Nevill referred Z.T. to a further insurer's examination with Dr. Ross Beauchamp, a neuropsychologist. Dr. Beauchamp stated in his initial report that:

My opinion, at this point, is that the suffering that [Z.T.] reports is genuine, and that it is perceived by her as a disturbing interruption in her life (and not a free meal ticket). I am convinced that [Z.T.] would choose to be rid of her pain, and get on with her life, if she had the tools to do so.

Dr. Beauchamp recommended a full neuropsychological assessment and weekly counselling sessions. After a follow-up subsequent telephone call from Ms. Engel-Nevill (the subject matter of which is unclear), Dr. Beauchamp stated that although "anxiety and pain were negative factors in [Z.T.'s] return to work prognosis . . . neither pain nor anxiety should stand in the way of a full return to work." However, without a full neuropsychological assessment, Dr. Beauchamp could not say whether Z.T. had any cognitive losses. He felt that such objective testing would be very difficult to fake, and equally difficult for an examiner to pre-determine an outcome. Although he believed that an early return to work or full-time education would be therapeutic for Z.T., Dr. Beauchamp does not state that Z.T. is able to immediately return to the precise job duties which she held at COM DEV.

In June 1995, Ms. Engel-Nevill reported that Dr. Landy had advised that "should [Z.T.]'s sedentary job at ComDev still be available to her . . . [Z.T.] would be capable of full involvement at this work activity."

I give little weight to this statement. There is no direct evidence from Dr. Landy to this effect (Dr. Landy's notes of his meeting with the caseworker do not even refer to the question of employability). I also found Ms. Engel-Nevill to be neither an objective nor an impartial witness.³ In any event, there is no indication that the specific intellectually challenging and highly stressful work Z.T. performed at COM DEV was being addressed rather than more general routine clerical work which could also be encompassed under the word "sedentary."

In September 1995, Z.T. underwent an extensive neuropsychological assessment. Dr. Shapiro, a neuropsychologist, concluded that although "technically valid, virtually all clinical scales were nevertheless elevated." Dr. Shapiro appeared to rely to a significant extent on some 34 quotes from the medical documentation provided to her, almost all of the quotes being adverse to Z.T.⁴ It was the uncontradicted evidence of Z.T. that Dr. Shapiro never actually saw her.

Dr. Shapiro nonetheless states that "there is evidence of long-standing psychological and emotional factors influencing this woman’s present functioning" and that "personality testing . . . indicates significant psychological factors influencing continued symptom maintenance."

Although Dr. Shapiro was unable to say whether Z.T. was consciously fabricating her condition, she concluded that there were "no neuropsychological barriers preventing this woman from returning to competitive employment at this time." That, as stated above, is not the correct disability test. Rather, the test is whether Z.T. is substantially unable to perform the essential tasks of her employment at COM DEV. This is not addressed in this report, nor is there any indication that any thought was given as to what the position at COM DEV precisely entailed.

Z.T. was further assessed by Dr. P. Grant, an orthopaedic surgeon, who sets out in his September 1995 report in some detail the physical (but not intellectual) job demands of Z.T.'s work at COM DEV. He advised that Z.T. can immediately return to full-time university activities. However, he never opined as to whether Z.T. can return to her work at COM DEV. Missisquoi argued that the university work and the work at COM DEV were comparable.

Missisquoi also argued that as the complaints of the Applicant were subjective, her credibility was crucial. Missisquoi submitted that Z.T.'s evidence was inconsistent (specifically with video surveillance⁵), vague, evasive, exaggerated, selective, and "totally unbelievable."

(ii) The Applicant's evidence

In December 1995, Z.T. was referred by her counsel to Dr. R. Faraawi, a specialist in internal medicine and rheumatology. Dr. Faraawi noted Z.T.'s complaints of neck and back pain, recurrent occipital headaches, problems sleeping, and difficulty with concentration and retention of information. Z.T. advised him that she attended university classes, but returned home extremely tired. Her questionnaire was consistent with the surveillance investigation.⁶ Dr. Faraawi stated that her symptoms had been managed with physiotherapy and medication.

Dr. Faraawi's diagnosis was that Z.T. "fulfills the exact criteria established by the American College of Rheumatology in 1991 for fibromyalgia. She has ongoing, generalized pain, fatigue, sleep disturbance and the classical soft-tissue tender points." In addition to severe reactive fibromyalgia, he also felt that she was suffering from depression and anxiety. Dr. Faraawi concluded that:

There is no standard definition for total disability and the assessment usually depends on age, illness, stress, type of job, education and culture. At this time, I believe that [Z.T.] has extreme difficulty in coping with school and daily activities. I also feel that she would have extreme difficulty in holding any gainful employment.

In May 1996, Dr. P. Galvin, a doctor of physical medicine and rehabilitation, found Z.T. to have 18 out of 18 tender points. Her diagnosis included fibromyalgia, chronic pain syndrome, sleep disorder, and a previous diagnosis of depression and anxiety. In her August 1996 letter to the Canada Pension Plan, Disability Unit, Dr. Galvin stated that Z.T.'s "residual capacity to perform any employment, given her medical conditions, is guarded and quite poor." Her recommendations included referrals to a fibromyalgia programme run by Dr. J.P. Schaman and trigger point injections from an anaesthetist, Dr. K.S. Billings, to relieve pain.

Z.T. saw Dr. Billings for nerve block and trigger point injections in June 1996. Dr. Billings noted Z.T.'s low pain threshold. He felt that there was "a bit of a chronic problem," and considered her chances of getting better at only 20%.

In June 1996, Z.T. also saw Dr. Schaman, who also found 18 out of 18 fibromyalgia tender points "significantly tender." He felt that Z.T. had developed a chronic pain syndrome, fibromyalgia and a severe depression. Dr. Schaman considered the prognosis to be guarded.

In September 1996, Z.T. was seen by Dr. V. Kumar, a consulting psychiatrist. Dr. Kumar's report is of little assistance as the history he took was incorrect, and he did not comment on disability. Although he indicated that he was "no expert in fibromyalgia," he diagnosed "post traumatic fibromyalgia with significant depression mostly as a reaction to living with chronic pain." Dr. Kumar recommended further medication to control Z.T.'s mood and pain.

In late 1996, Ms. D. Hildebrand Schlegel, an occupational therapist, indicated that Z.T. presented "all the classic symptoms of fibromyalgia." There is, however, no evidence of her expertise in this area, nor does she comment on disability.

In January 1997, Z.T. again saw Dr. Faraawi, complaining of severe fatigue, generalized muscular weakness, and problems with memory and concentration. She told him that she had missed many of her classes, did most of her studying in bed, and was given extra time to write her exams in a separate room. Dr. Faraawi found 18 soft-tissue tender points. He acknowledged in his report that:

The assessment of disability in fibromyalgia patients is somewhat difficult, because it depends on subjective criteria. Patients with fibromyalgia appear to be healthy and look well. Physical examination also fails to show any organic abnormalities, yet, the pain and fatigue can be severe enough to lead to significant disability.

Dr. Faraawi concluded that "there is no doubt in my mind that this lady is suffering from reactive fibromyalgia." He felt that Z.T. continued to suffer from severe fatigue and functional impairment, and that "it may be impossible for her to return to any form of gainful employment."

Throughout 1996 and 1997, Z.T.'s present family doctor, Dr. L. Lee, documented in her clinical notes chronic fatigue, depression, anxiety, poor sleep, headaches, difficulty with concentration and stress.

(d) Conclusion

Ontario Insurance Commission cases have held that an arbitrator need not determine the correct diagnosis in order to find an applicant disabled. I therefore need not determine whether Z.T. has fibromyalgia, or whether the source of her pain is "physiological, psychological, or behavioural, or some combination thereof." ⁷

For Z.T. to succeed, she must establish, on a balance of probabilities, that she was in a motor vehicle accident, as a result of which she sustained an impairment, and that the impairment significantly or materially contributed to her substantial inability to perform the essential tasks of her employment at COM DEV.

There is no dispute that Z.T. was in a motor vehicle accident.

Although I have some concerns with Z.T.'s evidence, which I sometimes found overdramatic (such as the pain which she experienced after the accident was the worst that anyone could experience, or that trying to remain in university after the accident was "torture") and sometimes selective (specifically with regard to the pre-accident history), the medical evidence is more than persuasive that Z.T. sustained an impairment as a result of the accident.

Most of the medical practitioners found Z.T. to be legitimate. I specifically note the comments of the Insurer's expert, Dr. Beauchamp, that he found the Applicant to be genuine, and that he was convinced that Z.T. would choose to be rid of her pain and get on with her life, if she could. I also note that Ms. Bielawski, who was called by the Insurer, and whom I found to be an objective and independent witness, felt that Z.T. had a genuine level of disability.

Z.T.'s evidence was uncontradicted as to the significant amount of medication she had consumed since the-accident.⁸ There are also numerous references to compliance with rehabilitation efforts (such as by Dave Wilkinson of Active Physiotherapy Rehabilitation Group, and Ms. Tamara Lee and Ms. Alysha Khindria of Ms. Engel-Nevill's rehabilitation company). There are also numerous notations of Z.T. seeking further medical assistance to find the cause of her problems.

The question is then whether Z.T.'s impairment constitutes a substantial inability to perform the essential tasks of her employment at COM DEV. As noted above, I find that this position was highly responsible, intellectually challenging, and one over which Z.T. had little control in terms of the pace of work. Although Z.T. had health difficulties when she left COM DEV, there is no evidence that these complaints were disabling. As noted above, I am satisfied that the injuries sustained by Z.T. in this accident significantly or materially contributed to her ongoing impairment.

I find that Z.T."s work at COM DEV was significantly different from her university studies. I accept that Z.T. was able to perform the latter work only with the University allowing her to exercise significant control over the pace of school work, and the manner in which it was done. This included having volunteers do her library research and type her assignments, getting extensions, working at home, dropping courses, and examination adjustments (of extra time and being allowed to walk in the hallway ), accommodations not afforded by COM DEV.

Dr. Shapiro had concluded that:

Overall, the resulting profile describes a self-centred and rather narcissistic individual who reacts to stress and avoids responsibility through the development of physical symptoms. These individuals expect and demand a great deal of attention and affection from others, and often use devious means to achieve this. Interpersonal relationships are generally superficial and immature, and these persons tend to be interested in others for what they can get out of the relationship. These individuals lack insight into their problems, and prefer to view themselves as medically ill. They therefore resist and resent psychological interpretations for their ongoing difficulties.

I am sceptical as to the accuracy of this description. Z.T. had a prior excellent work history. Her two years with COM DEV was preceded by six years with Raytheon Canada Ltd. (as acting program product assurance manager and senior electronics technologist), which was preceded by two years with Leigh Instruments in their quality assurance department. This work history was preceded by four years of community college and university education as a mature student. This education and employment was done while Z.T. was raising her children essentially on her own. This is hardly indicative of someone who "avoids responsibility," or who obtains advantages through manipulation rather than hard work. I find Z.T. to be an upwardly mobile person. I agree with Dr. Beauchamp that Z.T. sees her suffering as a disturbing interruption in her life rather than a "free meal ticket."

I do agree however that Z.T. is someone whose pre-accident emotional makeup made her more vulnerable to a longer course of recovery than perhaps the "statistical average." This is confirmed by the pre-accident notes of Dr. Landy, as well as post-accident reports such as those of Dr. Beauchamp and Mr. Wilkinson.

I find the important disability considerations in this case are not whether Z.T. could walk, sit or stand, but rather her capacity to perform the very responsible job demands and "high degree of creativity, originality and self-reliance" which were required at COM DEV. I accept that her sometimes overdramatic presentation was not conscious malingering, but rather reflective of her personality. I accept that post accident Z.T. has suffered from pain, fatigue, depression, memory and concentration problems, and sleep disturbance. Using Dr. Faraawi's analysis, considering her job demands, the nature of her illness, and her underlying personality, on a balance of probabilities, I find that Z.T.'s level of pain, discomfort, and depression has rendered her substantially unable to perform the stressful and demanding managerial position she held at COM DEV.

The parties agreed that entitlement to income replacement benefits can potentially continue past 104 weeks. I concur. I follow Arbitrator Allen's decision in Lehman and Gan Canada (October 27, 1997) OIC A96-001417, that the Schedule in place prior to the January 1, 1995 amendments applies to 1994 accidents. Subsection 23(8) of this Schedule mandates that the insurer shall continue to pay weekly income replacement benefits instead of loss of earning capacity ("LEC") benefits pending resolution of a LEC dispute (subject to exceptions which are not applicable), if the insured continues to qualify for such benefits. This is strengthened by section 24 of the Schedule, which allows as an exception, payment of LECs instead of weekly income replacement benefits where no LEC offer has been made, when an insured has so agreed in writing, which it is my understanding Z.T. has not. Hence, I find that Z.T. is entitled to payment of income replacement benefits from October 23, 1995, together with interest in accordance with section 68 of the Schedule.

3. Lump sum education benefit

Paragraph 16(1)(c) of the Schedule entitles an insured person to a lump sum education disability benefit for each semester or year of post-secondary education which an insured is unable to attend or successfully complete.

Z.T. submits that her pre-accident intention was to complete three years at Wilfred Laurier University in only two years. The Applicant submits that her accident related difficulties, including problems concentrating, prevented her from completing her courses in her anticipated time frame. She therefore claims the lump sum of $8,000.00 for what she says is the extra year of university necessitated by the accident, or in the alternative, $4,000.00 for an extra semester.

I find that Z.T. has not meet the requirements of the relevant provision. There is no track record or other objective evidence to show that Z.T.'s goal was reasonable or realistic. Indeed, despite withdrawing from some courses after the accident, Z.T. actually completed more courses per semester after the accident than before.

Furthermore, although Z.T. claimed that she was unable to physically attend many classes, I find that the accommodations provided both by the University Special Services department and the Insurer allowed Z.T. to adequately participate in her course work and successfully obtain 9.5 credits post-accident over a one and a half year period, mostly at a "B" or higher level.

Accordingly, I decline to award Z.T. any lump sum education benefit.

4. Housekeeping

Z.T. seeks payment pursuant to section 55 of the Schedule of $3,084.87 for her daughter's post-accident housekeeping and home maintenance expenses. This provision allows for payment of such expenses if they are reasonably incurred as a result of the accident.

Z.T. submitted an account for $1,500.00, but it provides no details as to what services were performed. A letter of August 25, 1996 enumerates a further, this time detailed, claim of $1,554.00, of which I am advised $1,379.00 remains outstanding. I received, however, no evidence as to why the services claimed or the amounts charged for these services were reasonable. Likewise, I received no evidence as to why the last outstanding account in the amount of $205.87 for "deluxe lawn care" was reasonably incurred. I therefore decline to order payment of any of these accounts.

5. Special Award

In final submissions, the Applicant raised for the first time a claim pursuant to subsection 280(10) of the Act, for a special award.

I agree with Director's Delegate Draper that "a special award is always a possibility if the arbitrator finds that the insurer unreasonably withheld or delayed the payment of benefits."⁹ I further agree with Director’s Delegate Naylor that "the adjudicator may consider making a special award even though it was not a subject at arbitration."¹⁰ I find both decisions to mean that the question of a special award is always before an arbitrator.

Both decisions, however, note that the requirements of procedural fairness must always be met. In this case, the special award was claimed only after the Insurer had called evidence. To ensure that the Insurer has a reasonable opportunity to respond to this claim, I refer this matter back to a telephone pre-hearing discussion to clarify the particulars of Z.T.'s claim for a special award, deal with any further production concerns, and determine whether further oral evidence is necessary or whether submissions, either oral or in writing, are sufficient.

6. Expenses:

Submissions on expenses were deferred. I may be spoken to, should there be any disagreement.

Order:

1. Missisquoi shall pay Z.T. weekly income replacement benefits from October 23, 1995, together with interest on overdue payments in accordance with section 68 of the Schedule.

2. The issue of a special award shall be dealt with at a resumption of this proceeding.

December 31, 1997

Lawrence Blackman Arbitrator

Date

Appendix "A"

Exhibit 1

Medical Brief.

Exhibit 2

Rehabilitation Brief.

Exhibit 3

Copy of Motor Vehicle Accident Report, August 19, 1994, Accident #80741.

Exhibit 4

Copy of Job Description Questionnaire and covering letter from COM DEV, dated September 24, 1991.

Exhibit 5

Applicant’s resume.

Exhibit 6

Copies of two Assessments of Disability, both dated September 21, 1995.

Exhibit 7

Two original letters from Wilfred Laurier University dated February 5 and February 6, 1997, together with Transcript of Applicant’s Academic Record.

Exhibit 8

Original second page of Insurer's November 29, 1996 Explanation of Assessment, together with Applicant's August 25, 1996 letter.

Exhibit 9

Original Explanation of Assessment form, dated August 23, 1996.

Exhibit 10

Original letter from Missisquoi Insurance dated December 23, 1996, with attachments.

Exhibit 11

Copy of letter dated September 24, 1996 from Ms. Judy Bruyn, Special Needs Co-ordinator, Wilfred Laurier University.

Exhibit 12

Curriculum Vitae of Ms. Theresa M. Bielawski.

Exhibit 13

Surveillance videotape of Scout Security & Investigations Ltd. covering April/ May 1995, March 1996, and July 22, 1996.

Exhibit 14

Six reports of Scout Security & Investigations Ltd., dated May 4, 1995, May 30, 1995, August 1, 1995, March 25, 1996, August 2, 1996, and October 9, 1996.

Exhibit 15

Surveillance videotape of Scout Security & Investigations Ltd., September 26, 1996.

Exhibit 16

Curriculum Vitae of Ms. Brigitte Engel-Nevill.

Exhibit 17

Copies of clinical notes and records of Dr. Linda Lee.

Exhibit 18

Original letter of May 23, 1997 of Missisquoi Insurance.

Exhibit 19

Copies of letters from the Missisquoi Insurance Company, dated July 14, July 24, August 1, August 9, and August 11, 1995.

Exhibit 20

Copy of letter dated July 26, 1995 from Z.T.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.
2. 2E.Z. and Royal Insurance Company of Canada (November 14, 1995), OIC A-995237, at p. 18.
3. 3I found Ms. Engel-Nevill's explanation that her several medical referrals were for the Applicant's benefit to be disingenuous, as it is obvious from the correspondence and reports before me that the primary purpose of her referrals was not the medical treatment of Z.T., but rather to assist the Insurer in determining whether the Applicant was entitled to any further benefits. I also find that in a (misguided) effort to protect the Insurer's interests, Ms. Engel-Nevill delayed Z.T. obtaining psychological help which had been broadly recommended, citing causation concerns. Although Ms. Engel-Nevill admitted at the hearing that she had little insight into Z.T.'s pre-accident emotional condition, this did not prevent her from advising her principals that the "psychological component" preceded the accident, and "should not be insurance supported."
4. 4The quotes are mainly from Ms. Engel-Nevill's reports. Other quotes appear to be selectively negative to Z.T. While raising causation issues from Dr. Beauchamp’s report for instance, Dr. Shapiro fails to mention that he considered her to be genuine. Dr. Shapiro notes Ms. Lee’s January 3, 1995 comments hoping that Z.T. can develop a more positive approach to her exercise programme, but fails to mention (it may be that she was not provided with) Ms. Lee’s January 9, 1995 report which states that "Z.T. follows instructions well and now appears to be eager to participate in this pool exercise programme."
5. 5Regarding the significant amount of surveillance done on Z.T., I agree with the comment of the kinesiologist, Tamara Lee, that "to draw a conclusion with respect to her true physical abilities based on the footage provided, would be considered speculation at best." There was perhaps some inconsistency between the physical complaints expressed by Z.T. and the absence of any obvious signs of pain or physical restriction in the video, but all that is really shown is light physical effort (e.g. walking and carrying what appear to be relatively light items, described in the investigator's report for instance as "a light weight leather or vinyl briefcase" or a "small bag"). In some of the investigation, Z.T. is noted being assisted by her daughter or a store clerk.
6. 6Z.T. advised that she drove a car "most times." She stated that she occasionally shopped or walked several blocks. She further advised that she "never" did yardwork. An investigator noted on July 21, 1995 that the claimants's lawn was long in length and the visible flower beds were full of weeds and dandelions.
7. 7Barbara Edwards and State Farm Mutual Automobile Insurance Company (Director's Delegate Draper, February 26, 1996), OIC P-001707, at p. 5.
8. 8Consisting of hundreds of tablets of more than a dozen different analgesic, anti-inflammatory, anti-depressant and other medications. This contrasted with Dr. Iwan's pre-accident January 1993 notation that he did not think that Z.T. would take any medication which he might prescribe.
9. 9Royal Insurance Company of Canada and Clark (September 26, 1997) OIC P-000008.
10. 10Tagarin and Simcoe & Erie General Insurance Company (February 26, 1996) OIC P-004660.