Neutral Citation: 1997 ONICDRG 43

OIC A-010229

ONTARIO INSURANCE COMMISSION

BETWEEN:

OLIVIA VIEIRA

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Olivia Vieira, was injured in a motor vehicle accident on September 11, 1990. She applied for and received statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under Ontario Regulation 672.¹ Weekly income benefits of $360 were terminated by Dominion on September 19, 1993. The parties were unable to resolve their disputes through mediation and Ms. Vieira applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits from September 19, 1993 and ongoing under section 12(5)(b) of the Schedule?

2. Is the Applicant entitled to a special award under section 282(10) of the Act?

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

Result:

1. The Applicant is not entitled to further weekly income benefits.

2. The Applicant is not entitled to a special award.

3. The Applicant is entitled to her expenses incurred in the proceeding.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on March 27 and 28, 1996.

Present at the Hearing:

Applicant:

Olivia Vieira

Ms. Vieira's Representative:

Altor Shields Barrister and Solicitor

Robert Greco Articling student

Dominion's Representative:

William McClelland Barrister and Solicitor

Dominion's Officer:

Theresa Less Claims Service Representative

Arbitrator:

Nancy Makepeace

The Applicant was assisted by Rosa-Maria Fuente-Fernandez, an interpreter in the Portuguese language.

The proceedings were recorded by Helen Kazis (first day) and Marianne Still (second day), of Professional Court Reporters.

Witnesses:

Ms. Olivia Vieira, the Applicant

Dr. A.M. Diaz de Molnar, the Applicant's family doctor

Gordon Pappin, private investigator

Exhibits:

Exhibit 1

Applicant's Document Brief

Exhibit 2

Insurer's Document Brief

Exhibit 3

Additional clinical notes and records of Dr. Diaz

Exhibit 4

Photograph of the vehicle from the front

Exhibit 5

Photograph of the vehicle from the rear

Exhibit 6

Additional consultation note of Dr. Diaz

Evidence and Findings:

The Accident

On September 11, 1990, the Applicant was the front seat passenger while her husband drove their station wagon on the Gardiner Expressway or Queen Elizabeth Way. The Applicant was not wearing a seatbelt. The Vieira car had stopped or slowed down during busy traffic when it was rear-ended by a truck. The Applicant testified that her head broke the front windshield when she was thrown forward, and her right shoulder and arm broke the front right (passenger) window. She also struck her right knee against the dashboard. Photographs of the vehicle show moderate damage to the right front panel and hood, and more serious damage to the rear door and right rear panel. The photograph taken from the right front of the car shows a crack in the windshield on the passenger side. However, there was no evidence corroborating the Applicant's testimony that the right front window was cracked, and the window appears to be intact in the photograph taken from the right rear of the car. I find that the front windshield was cracked in the accident, but

I am not satisfied that the right front window was damaged.

The Applicant testified that she fainted for a few minutes on impact, was carried to an ambulance by her son and another person, and was taken to St. Joseph's Hospital, where she regained consciousness. She also told Dr. L.M. Picard, Dr. Ted Tanzer and Dr. Adrian N. Hanick that she lost consciousness. However, the September 14, 1990 clinical note written by Dr. A.M. Diaz de Molnar, the Applicant's family doctor, stated "she said she did not lose consciousness at any time" [emphasis in original]. In the absence of ambulance or hospital records, I prefer to rely on Dr. Diaz's emphatic note, which was prepared within days of the accident. The Applicant testified that at the hospital she complained of a severe headache, back pain, neck pain, right arm pain, and right knee pain. X-rays were taken and the Applicant was prescribed analgesics and a cervical collar before being discharged to the care of her family doctor. The Applicant saw Dr. Diaz on September 14, 1990. Dr. Diaz' note for that visit indicates that the Applicant reported pain in her right forehead (where Dr. Diaz noted contusions) and on the right side of the back of her head, neck pain, especially on the right side, right shoulder and arm pain, right elbow pain, and bilateral knee pain. More recently, the Applicant has also complained about right hand numbness, as well as depression and sleep problems which she attributes to the accident. The Applicant claims that she continues to be disabled by her accident-related complaints, especially back pain and headaches.

Essential Tasks of the Applicant's Pre-accident Job

During the first 156 weeks, an insured person is entitled to weekly income benefits while she is substantially unable to perform the essential tasks of her pre-accident job because of injuries resulting from the accident.

Before the accident, the Applicant worked full time as a cleaner in a high-rise government office building in Toronto. There is little dispute in this case about the Applicant’s essential tasks as an office cleaner. These included: removing garbage, cleaning desks, shelves, windows and bathroom fixtures, stocking bathroom supplies and vacuuming floors. The Applicant cleaned carpeted floors with an industrial-sized vacuum cleaner on wheels. She also used a wheeled cart containing cleaning supplies and a large garbage receptacle.

The Applicant says she is unable to return to her job as a cleaner because of its physical demands, especially bending (to clean desks, vacuum floors or pick up garbage containers, for example), reaching overhead (to clean high shelves, washroom windows and mirrors, for example) and lifting garbage bags and cleaning supplies.

In addition to her cleaning duties, the Applicant supervised eleven other cleaners. Her duties as a supervisor included unloading supplies from her supervisor’s vehicle and using a wheeled cart to take them to a storage area. In her examination-in-chief, the Applicant testified that it was also her responsibility to distribute these materials to staff. On cross-examination, she stated that the cleaners came to the storage area at the beginning of each shift to load up their carts. I find the latter the more credible account. In her role as supervisor, the Applicant also inspected the cleaned offices, kept attendance records and handed out pay cheques. She was also responsible for ensuring that enough staff were on site, and if not, she would fill in as needed.

In her examination-in-chief, the Applicant testified that large plastic jugs of cleaning fluids and boxes of garbage bags weighed as much as 30-35 kg., and had to be carted 16-18 feet between her supervisor’s vehicle in the parking garage to the elevator, and then from the elevator to the storage room. In re-examination, she said the boxes of garbage bags weighed 25-35 pounds and 2 litre jugs of cleaning fluid weighed 2 kg. I have the impression that the Applicant did not know how much these items weighed, but wanted to convey that they were heavy. I find that she overestimated or exaggerated the weight of the cleaning supplies, but I accept that she was required to lift industrial-sized jugs and boxes from the trunk of the car to the cart, and then unload them and shelve them in the storage area.

The Applicant estimated that over a 7 hour day, she spent about 4 hours cleaning the floor for which she was responsible, and about 3 hours working as a supervisor. I accept the Applicant’s evidence that her role as cleaner/supervisor was a "working supervisor" position, and would not be available to her if she were unable to perform her non-supervisory duties as a cleaner.

The Applicant's Pre-accident Condition

The Applicant admitted that she had back and right shoulder problems before the accident. This does not automatically preclude her from receiving benefits. The Applicant must prove, on a balance of probabilities, that she sustained disabling "physical, psychological or mental injury as a result of" the accident. As arbitrators have said in many previous arbitration decisions, the insured person is not required to prove that the accident was the only cause of disability. If the accident significantly or materially contributed to an insured person’s ongoing disability, a sufficient causal connection has been established.

X-rays of the Applicant's lumbar spine taken shortly after the accident (October 29, 1990) revealed pre-existing degenerative disc disease at L3-4. Lumbar and thoracic x-rays taken in January 1987 (almost four years before the accident) showed mild degenerative changes at L3-4 and from T5 to T8.² In a standard form report for the Insurer dated January 15, 1992 (after the accident), Dr. Diaz referred to a "bad myofascial strain of thoracic and lumbar back in 1978." Dr. Diaz testified that she did not know how this injury happened and knew about it only from the notes of the Applicant’s previous family doctor.

Degenerative x-ray changes are not necessarily symptomatic, but in the months immediately following the accident, the Applicant candidly told her doctors about her prior back symptoms.³Dr. J. Uddin, a rheumatologist and internist, reported after the accident that he had treated the Applicant "in regard to many years of low back pain radiating to both thighs."

On May 2, 1990, four months before the accident, Dr. Diaz recorded the Applicant’s complaints of low back and mid-back pain exacerbated with bending. On behalf of the Applicant, Mr. Shields focused on Dr. Diaz' clinical note for July 23, 1990, which states "presently no musculoskeletal problems." This was the Applicant's last visit with Dr. Diaz before the accident. In my view, it is necessary to examine the Applicant’s condition for some reasonable period of time before the accident, and not just on one particular day. It is also necessary to consider the nature of the Applicant’s pre-existing condition. Osteoarthritis is a chronic disease often characterized by asymptomatic periods followed by recurrences. Dr. Diaz agreed that osteoarthritis is exacerbated by obesity and "may" get worse with age.⁴

On cross-examination, the Applicant agreed with the Insurer’s counsel that she had back pain periodically right up to the day of the accident, but "not every day." When Mr. McClelland asked if her low back problems gave her difficulties with work, the Applicant admitted that she had problems using the vacuum cleaner. When asked whether she had problems lifting before the accident, she replied that there was "not much lifting" in the job. She admitted that she sometimes found it difficult to lift the "very heavy metal wastepaper basket" in order to empty its contents into the garbage bag on the cart. She testified that the male cleaners washed and waxed the floors, and that she sometimes had to ask them to help her lift heavier items from the cart. She also testified that when she returned to work in August 1991, she did not try to use the vacuum cleaner because it used to bother her before the accident.

I find that because of recurrent back and right shoulder pain, the Applicant experienced functional limitations at work before the accident. Her restrictions did not prevent her from working, but necessitated some modifications in the way she did her job.

The Applicant also admitted that she has suffered from right shoulder problems since she fell in the snow in November or early December 1988. Shoulder x-rays at that time were negative, but Dr. Andrew Tumiel, an orthopaedic surgeon, found that the Applicant had limited internal rotation and abduction. He felt that with rest and analgesics, the Applicant would recover in 3-4 weeks.

In her examination-in-chief, the Applicant testified that she lost no time from work as a result of this injury and the shoulder only hurt for about two weeks, until she got an injection. On cross-examination, she initially said she missed a few days work, and her sister or husband filled in for her. The Applicant’s testimony on this point was controverted by Dr. Diaz clinical note for January 17, 1989, which indicates that the Applicant told Dr. Diaz that she was still unable to work, more than a month after her fall, because of her right shoulder pain. Dr. Diaz sent her back to Dr. Tumiel, who gave her an analgesic injection in February and prescribed analgesic and anti-inflammatory medication. When this evidence was presented to the Applicant in cross-examination, she stated that she returned to work the same day Dr. Tumiel gave her the injection. This would indicate an absence from work of at least two months.

The Applicant saw Dr. Diaz again in March 1990 complaining of "pain in the [right] shoulder and the hip [for] months."⁵ Dr. Diaz referred her to Dr. J. Uddin, a rheumatologist, who diagnosed fibrositis and degenerative joint disease. Dr. Uddin also ordered a bone scan, which showed that the Applicant has "arthritis in both shoulders, slightly more marked on the right." Dr. Uddin recommended physiotherapy, weight loss and Flexeril. At the hearing, Dr. Diaz testified that the Applicant was still reporting right shoulder pain when she was examined in early May 1990. I find that the Applicant had recurrent but non-disabling pain in her right shoulder before the accident.

In the summer of 1994, the Applicant told Ms. Bebie, an assessor at Toronto West Rehabilitation Services Inc. ("Toronto West"), that she had bilateral shoulder pain at a level of severity of 9 out of 10. The Applicant also complained of "extreme pain in both shoulders"on Cybex testing in September 1994. I find that bilateral shoulder pain is more likely to be related to the Applicant’s bilateral osteoarthritis or her bilateral shoulder injuries suffered in her fall in 1988 than to the motor vehicle accident, when only her right shoulder impacted the door of the car.

Aside from her musculoskeletal complaints, the Applicant suffered both before and after the accident from several problems unrelated to the accident. In early 1991, Dr. Diaz referred the Applicant to Dr. R.H. Kim, an endocrinologist and internist, for investigation of a possible thyroid problem. Dr. Kim reported that the Applicant had suffered from "fatigue for many years." Little detail was provided about the Applicant’s possible thyroid problems. Dr. Diaz testified that medication was not required. However, Dr. Kim’s August 21, 1991 consultation note stated that the Applicant had a benign thyroid nodule removed and had subsequently been placed on thyroid medication. The Applicant denied having any surgery, and testified that she had stopped taking thyroid medication. On the basis of the medical evidence filed, I am unable to determine the nature of any ongoing thyroid problem the Applicant may have had during the period in issue. However, the fact that a thyroid ultrasound was conducted as late as June 1995,⁶ indicates that investigation into a possible thyroid problem was ongoing at least till then.

Dr. Kim also reported that the Applicant was known to suffer from mitral valve prolapse, though I received no further evidence about this problem. Based on the evidence I received, I am unable to make any findings about the significance of the Applicant's pre-existing thyroid and heart problems.

The Applicant also had headaches before the accident, although Dr. Diaz testified they were not as continuous or as severe as her post-accident headaches. Dr. Diaz’s notes and testimony confirmed the Applicant’s testimony that her headaches were not related to musculoskeletal problems.

Immediately after the accident, Dr. Diaz referred the Applicant to Dr. L.M. Picard, a psychiatrist and neurologist, with regard to constant right-sided headaches which were "frontally maximal" but extended to the bi-occipital area. On examination, Dr. Picard noted a bony prominence over the Applicant’s right forehead, which the Applicant told him had been present from birth. Dr. Picard felt that the Applicant had "post head trauma syndrome with headaches." He reviewed her skull x-rays of September 18, 1990, which showed a right-sided lesion, and sent her for a brain scan and EEG, both of which were negative. Dr. Picard stated in October 1990 that the Applicant had not sustained "a serious head trauma." He did not feel that the bony prominence was "cause for any great concern," but recommended that it be checked yearly for changes.

The Applicant saw Dr. Picard again in January 1991. She told him that she had a "blank spell" of visual fading and dizziness in the bath, and had fallen and hurt her right knee. This happened again in March 1991. Dr. Picard felt that these periodic flareups of the Applicant's base level dizziness "may be ... recurring bouts of presyncope" which he noted "is not terribly uncommon in painful conditions." He ordered more EEG and blood tests, which were negative. He did not recommend any treatment, but continued to think that the Applicant would "eventually have a complete recovery from her post traumatic symptoms."

The Applicant's skull x-rays were unchanged in September 1991. Dr. Picard ordered a CT scan, which confirmed the existence of a lesion, probably an osteoma⁷ or meningioma.⁸ The Applicant was then referred to Dr. F. Gentili, a neurosurgeon. Dr. Gentili stated that he was "not entirely certain" that the Applicant's right-sided headaches were caused by the lesion, but he thought this was "likely" given that the headaches and the lesion were in the same area of the skull. He ordered a repeat CT scan in six months.

Dr. Picard did not think the skull lesion was the source of the Applicant's headaches. He told Dr. Diaz:

I informed the patient that I did not feel that the lesion was currently symptomatic or that it was related to her accident. [July 20, 1992 report]

Dr. Picard reiterated this opinion in September 1992, after the repeat CT scan showed no changes. He again thought the lesion was probably an osteoma and he did not recommend any aggressive treatment for it. In January 1993, when the Applicant reported another episode of dizziness, Dr. Picard said these symptoms were probably related to the inner ear rather than the skull lesion. In his final consultation note of October 20, 1993, he reiterated his view that the Applicant's skull lesion was not the cause of her problems.

In his April 14, 1993 consultation note, Dr. Picard reported the Applicant's statement that she continued to have headaches lasting about half an hour about two to three times a week, usually when she was under stress. However, by July 1993, two months before benefits were terminated, Dr. Picard reported that the Applicant’s "headaches have not been particularly bothersome" and he described the Applicant as "asymptomatic." A year earlier, the Applicant told Dr. Tanzer she had "mild daily headaches." She didn't mention headaches at all to Dr. Lexier, Dr. Evans, or HRC in the first two years after the accident, and the first record I can find of any report of "daily headaches" was the Applicant's report to Total Rehabilitation Management Inc. ("Total"), to which her counsel had sent her in 1992, two years after the accident. Based on this evidence, I am not satisfied that the Applicant continues to suffer from disabling accident-related headaches after benefits were terminated in September 1993.

The Applicant’s Condition and Treatment after the Accident:

The Applicant’s Testimony

At the hearing in March 1996, the Applicant testified that she still has severe back pain two or three times a week lasting one or two hours. The pain goes away with Tylenol 3. She described it as starting in her mid-back, and moving up towards her neck. On other days, she has constant less severe back pain. Because of her back pain, she is unable to mop or vacuum the floors at home. She also has severe headaches lasting two hours or so every few days; these are relieved with two regular Tylenols. On other days, she has a constant less severe headache. The Applicant also testified that she has right arm pain and right hand numbness whenever she moves her right arm - especially when she does laundry. (The Applicant testified that she is able to perform light housework - laundry and cooking, for example - since the accident, but her daughter does the cleaning, which she is unable to do.) The Applicant wears a wrist splint at night, which she says helps with the numbness in her right hand. She also complains of a sharp pain behind her right knee when climbing stairs.

The Applicant also testified that she is not the same person psychologically since the accident. She is sad, can’t sleep, and worries a lot. However, she stated that it is her physical symptoms, especially back pain and headaches, that prevent her from working.

Dr. Diaz' Testimony

Dr. Diaz testified about her treatment of the Applicant, and her clinical notes and records from early 1988 were filed into evidence. It was Dr. Diaz opinion that the Applicant remained disabled by her accident-related injuries at the time benefits were terminated in September 1993.

In a form report dated March 22, 1993, Dr. Diaz diagnosed head contusions, severe whiplash injury, contusions of the right arm and right knee, moderately severe back strain and situational depression, all related to the accident. Dr. Diaz felt that the Applicant "will remain with pain for years, probably for all her life. The degree of which I am not able to determine for the future."

In a report for Mr. Shields dated September 5, 1995, two and a half years later, Dr. Diaz gave her opinion that the Applicant "will not be able to return to a gainful employment ever again ..." She set out the Applicant’s subjective complaints as follows:

... pain in the right shoulder that she describes as being of 6 to 7 severity in a scale from 1 to 10, back pain that she describes of being severe - 8 in a scale from 1 to 10, headaches - moderately severe described as a 6 in a scale from 1 to 10, pain in the neck and pain in the right knee - moderately severe, both of 5 to 6 severity in a scale from 1 to 10 ... intermittent numbness in the right hand that is worse in the morning.

The back pain sometimes continues for a few days in a row, sometimes it lasts for a few hours during the day....She tells me most of the time she has pains somewhere in her body that was [sic] related to her accident, whether it is her back, neck, knee, shoulder or headaches.

Occasionally Mrs. Vieira has periods completely free of pain that lasts for about 1 hour, approximately 3 times a week.

Dr. Diaz made the following findings on physical examination:

• Has limitation of movement of the right shoulder, she is not able to raise her right upper extremity straight up parallel to the head.
• There is reduction in the abduction of the right shoulder in 20% of the normal. .- The posterior flexion of the upper extremity is reduced in 50% of the normal range.
• Is able to bend her waist down only 40 degrees.
• Leg elevation bi-laterally is approximately 35 degrees bilaterally. [sic]
• Mrs. Vieira is able to bend the knee normally.
• Mrs. Vieira is not able to do repetitive [sic] bending or pushing movements.
• Is not able to lift more than 3 kg with the right upper extremity and only from the waist to the shoulder and no higher. After 10 seconds she feels pain in the right shoulder and weakness in the right hand, therefore she has to let the weight down.
• She has decreased superficial sensitivity of the right hand.

At the hearing, Dr. Diaz reaffirmed her opinion that the Applicant is still unable to work as a cleaner. In her testimony, she made one reference to the Applicant’s specific tasks: she testified that the Applicant could not lift heavy bags of garbage. I accept that the Applicant was required to empty wastebaskets of (mostly) paper into a large garbage bag affixed to her cart, which she would later put out for removal. However, I heard no evidence of the weight of the full garbage bags.

In any event, I do not accept Dr. Diaz’s assessment of the Applicant’s functional limitations, because it is inconsistent with those of most of the other experts who have assessed the Applicant, including Dr. Lexier and Dr. Tanzer (orthopaedic surgeons), the Health Recovery Clinic, and Total Rehabilitation Inc., all of whom she saw on referral from by Dr. Diaz or her counsel.

Dr. Diaz prepared two versions of her September 5, 1995 report. In the first version, after listing the Applicant’s complaints (reduced mobility of the right arm, pain in the back, neck and right knee, headaches, and depression) she stated that the Applicant "had none of the complaints listed above before the accident." The amended report, prepared the same day, replaced that erroneous statement with the statement, "Mrs. Vieira was feeling well before the accident." In both reports Dr. Diaz' stated that the Applicant’s complaints "are consistent with being secondary to the motor vehicle accident."

At the hearing, Dr. Diaz admitted that the Applicant "had some complaints" before the accident. She conceded that osteoarthritis and fibrositis are chronic conditions, and that age and excess weight may aggravate osteoarthritis in the absence of any further trauma. Dr. Diaz' reports did not set out her reasons for believing that the Applicant’s complaints resulted from the accident. Her testimony indicated that she relied mainly on the Applicant’s report that she was functional before the accident and not afterwards. The other expert evidence does not support Dr. Diaz assessment of the Applicant’s physical and psychological disabilities after the accident.

The Other Expert Evidence

The Applicant was initially treated with a cervical collar, analgesics and passive physiotherapy. When she failed to improve, Dr. Diaz referred her to Dr. Reuven Lexier, an orthopaedic surgeon, who reviewed the Applicant’s x-rays and examined the Applicant on November 28, 1990. Dr. Lexier found that the Applicant's right shoulder was tender, but had full range of motion. Her right knee was also normal, except for some mild patellofemoral crepitus. He found no sign of neck injury. Lumbar range of motion was full, although the Applicant complained about "some discomfort" at maximal forward flexion. Dr. Lexier diagnosed soft tissue injuries which he felt were "resolving quite nicely." He made the following recommendation:

For psychological reasons it might be useful to continue with the physiotherapy for an additional two week[s] with a return to work thereafter. She will require a great deal of reassurance with the emphasis on the amount of pain that she is having. Follow-up with myself is not indicated. [emphasis added]

On November 30, 1990 (two days after her examination by Dr. Lexier), the Applicant was examined by Dr. John G. Evans, an orthopaedic surgeon, at the Insurer’s request. Dr. Evans conclusions were very similar to Dr. Lexier s. He diagnosed "cervical and lumbar sprain and injury to her right shoulder which is slowly improving." He concluded that exercise was "very vital if [the Applicant] in fact wants to go back to more than the supervisory capacity, which she would be capable of doing in two, perhaps three weeks, in my opinion."

In early 1991, Dr. Diaz referred the Applicant to the Health Recovery Clinic ("HRC"), where she participated in an eight-week pain management and functional restoration program directed at her neck, arm and knee problems and her dizziness. I note that the HRC reports do not mention any back or shoulder problems. Ms. Louise E. Koepfler, a clinical supervisor with HRC, reported at the conclusion of the program in May 1991 that the Applicant had made "marked gains" in her strength and endurance:

She was able to repetitively bend and lift 22 pounds from floor to centre of gravity, an increase from eight pounds initially. She is able to push and pull 22 pounds, an increase from an empty cart initially. Lifting from eye level to centre of gravity is 10 pounds and from floor to eye level 14 pounds.

In program she built up her tolerance for all work related activities and is able to stay on task (for example, sweeping, cleaning mirrors) for approximately 10 minutes before having to change activities. She has also learned to lighten heavier loads and make additional trips in order to avoid unmanageable discomfort. Using these strategies we feel that she is ready to return to her regular work.

Ms. Koepfler noted that the Applicant demonstrated pain behaviour, but was cooperative and hard working. HRC contacted the Applicant’s pre-accident employer and arranged a return to work.

Dr. Evans examined the Applicant again on August 15, 1991, after she had attended the Health Recovery Clinic program. He reported that "the objective features do not substantiate the degree of incapacity that [the Applicant] indicates." In his view, the Applicant’s weight (about 240 pounds, at a height of 5'8") was "by far the most significant feature." He recommended that the Applicant be given dietary advice and a splint for her right knee, and that she try to return to work in two weeks, while avoiding "lifting heavy cleaning utensils and too many stairs." He added that the Applicant’s knee would deteriorate "rather quickly" if she did not lose weight, but he did not believe this was caused by the accident.

I heard no evidence that the Applicant’s job involved climbing stairs. Indeed, her evidence was that she worked in a high-rise building equipped with elevators. Further, Dr. Evans did not specify what he meant by "heavy cleaning utensils." In my view, Dr. Evans' report suggests that he expected the Applicant to be able to return to what was in fact her regular work in another two weeks.

The Applicant testified that she tried to return to work in August 1991, but she was unable to work longer than one and a half hours. When confronted with Dr. Tanzer's report, which said that she worked one and half hours a day for three days,⁹ the Applicant amended her earlier evidence and stated that she worked on two days. The Applicant testified that she "believes" she made another unsuccessful attempt to return to work about a year after the first one, and worked about the same amount of time as in her first attempt. Unlike the August 1991 return to work, which the Applicant consistently reported to her doctors, there were few references to this second attempt in the Applicant’s medical record. I heard little detail about this second attempt, which was not corroborated. I am not satisfied that the Applicant made any subsequent effort to return to work after her first attempt in August 1991. I think the Applicant probably tried to return to work for one or two days in August 1991, and has made no attempts subsequently.

The Applicant testified that when she went back to work, she started by collecting the garbage from the office wastebaskets, but the bending involved irritated her back, right arm and head. She was unable to finish and called her husband to pick her up. On cross-examination, the Applicant testified that she also tried to dust the desks and clean the shelves in the washrooms and offices, but she was unable to reach overhead. She did not try to use the vacuum cleaner because it was "very heavy" and used to bother her before the accident.

When the Applicant’s attempt to return to work failed, Dr. Diaz sent her back to HRC, "to build up her cardiovascular fitness and work with her to help her manage her pain and emotional response." However, the Applicant’s doctors asked that the Applicant not be involved in heavy activities until the investigation of her skull lesion was completed. For this reason, the Applicant’s participation was limited to light cleaning for four hours a day over four weeks. Ms. Koepfler reported in November 1991 that the Applicant was "quite capable" of handling this program but had "plateaued." Nevertheless, Ms. Koepfler still believed that the Applicant "should be able to manage the regular work she performed prior to her accident." Ms. Koepfler stated that the Applicant’s problem seemed to be one of vocational integration rather than pain management or physical conditioning.

Contrary to the HRC reports, which state that the Applicant improved her functioning and stopped using Tylenol 3 while on the program, the Applicant testified that her condition got worse while she participated in the program, and that she performed the tasks asked of her with difficulty and only because she was obliged to. She also testified that she continued to take Tylenol 3 at home, though Dr. Diaz had told her to cut down. The Applicant remembered being asked about medication on intake at HRC, but did not remember being asked this question on discharge. She suggested that maybe she just wasn’t taking medication that day. The Applicant testified that HRC told her to try to return to work, and she admitted that she did not do so. I think the Applicant probably denied any improvement at HRC in order to explain her failure to try another return to work and in order to impress upon me how much she is hurting. I prefer to rely on description of her symptoms set out in the HRC report, which was prepared contemporaneously with the events described.

On referral from Dr. Diaz, the Applicant was seen by Dr. J. Uddin, a rheumatologist, in November 1991. He found her tender in the paracervical, paradorsal and paralumbar areas "as before" and diagnosed fibrositis, as he had on March 23, 1990, six months before the accident. When he examined the Applicant again on March 25, 1992, Dr. Uddin diagnosed lumbar strain, and recommended that the Applicant lose weight and continue with her home exercises.

On July 14, 1992, Dr. J. Uddin found that the Applicant's right shoulder was tender and had reduced range of motion. He diagnosed "periarthritis" in the Applicant’s right shoulder. ¹⁰

In August 1992, the Applicant was referred by her counsel to Dr. Ted L. Tanzer, an orthopaedic surgeon. At that time, the Applicant stated that her worst ongoing problem was constant posterior neck pain radiating into the right shoulder and upper arm, as well as right hand numbness and right arm weakness. Dr. Tanzer described intermittent low back pain as the Applicant’s second most serious problem. Dr. Tanzer’s report says that the Applicant reported back pain, which was aggravated by bending, about once a day for five to ten minutes at a time. Dr. Tanzer’s diagnosis, like that of Drs. Lexier and Evans, was cervical and lumbar strain. Dr. Tanzer also diagnosed accident-related headaches and he found "very mild evidence" of right rotator cuff tendinitis. He concluded:

Overall I think that at the present time I have encouraged her to attempt to return to some form of work duties at least on a part-time basis. I think that to start her duties should be lighter than what they were before. Certainly I think that repeated lifting and bending would not be a good thing for her to start, and I think that lifting bags of garbage up to 50 pounds in weight would be too heavy for her.

In her testimony at the hearing, the Applicant endorsed Dr. Tanzer's description of her low back pain, except that she denied saying it lasted only five to ten minutes. She offered no alternative account of what she told Dr. Tanzer. I find that Dr. Tanzer probably reported that the Applicant had back pain for five to ten minutes at a time because that’s what she told him. In my view, Dr. Tanzer’s report suggests on its face that the Applicant’s complaints in August 1992 were mild.

Moreover, it appears that Dr. Tanzer did not review the Applicant’s medical file and relied exclusively on the Applicant’s subjective complaints. I heard no evidence that the Applicant’s job involved lifting garbage bags weighing 50 pounds, and I do not accept that it did. The Applicant also told Dr. Tanzer that she lost consciousness for about five minutes, a claim which I have already rejected. Finally, Dr. Tanzer reported that the Applicant "denies any previous neck or back pain of note." I have found that the Applicant’s pre-accident back symptoms were serious enough to necessitate some modifications in the way she performed her duties.

For these reasons, I do not accept Dr. Tanzer’s opinion that the Applicant was unable to return to her regular work in August 1992.

In December 1992, the Applicant’s counsel referred her to Total. On initial assessment, the Applicant complained of constant back pain, frequent neck pain radiating to the shoulders, more to the right than the left, occasional numbness of the right arm, and daily headaches accompanied by dizziness. John Giovanetti, employment consultant with Total, thought that the Applicant’s potential for rehabilitation was "guarded," based on her presentation as totally disabled.

When Mr. Giovanetti visited the Applicant in her home on April 22, 1993, the Applicant reported increased tolerance for walking, sitting and standing, but stated that she was still severely restricted in bending, stooping, kneeling, lifting, carrying and reaching overhead with her right arm. In a progress report dated June 14, 1993, Mr. Giovanetti stated that there was no change in the Applicant’s activities of daily living, despite daily passive physiotherapy, which the Applicant said helped for only about an hour.

In May 1993, Dr. Uddin found that the Applicant was still "2+" tender in the right shoulder. He ordered an ultrasound of both shoulders, which suggested a chronic rotator cuff tear in the right shoulder.

In July 1993, at the suggestion of Dr. Diaz, Total arranged for the Applicant to begin attending a Mississauga physiotherapy clinic, rather than driving daily to Toronto for therapy, as she had been doing. After three weeks of daily two-hour sessions involving exercise and education, the Applicant’s physiotherapist at the Mississauga Orthopaedic and Sports Injury Centre reported to Total that the Applicant’s range of motion had improved and restrictions in neck mobility had been eliminated. Her opinion was that the Applicant’s main problem was that she was very pain-focused. Three more weeks of therapy were recommended. The Applicant testified that this therapy helped, especially the back exercises, which she says she still does. However, she testified that the clinic didn 't push her too much, and allowed her to do thing at her own pace. Specifically, pushing and pulling exercises were the most difficult.

The Insurer terminated the Applicant’s weekly benefits effective September 19, 1993. I received no evidence about the Insurer’s reasons for terminating benefits at this time. I have the impression benefits were terminated because they had been paid for 156 weeks. In Maas,¹¹ Arbitrator Asfaw Seife made the following comments about section 12(5)(b) of the Schedule:

The 156 week mark of the accident is not a magical time when entitlement to weekly benefits under section 12(1) stops automatically. In my view, before stopping benefits, the Insurer must allow the insured person a reasonable opportunity to establish that the injury continuously prevents him/her from engaging in any suitable employment.

I agree with these comments. In my view, the passage of 156 weeks does not extinguish an insurer’s obligation to enquire into and assess a claim fairly, to give reasonable consideration to all the available information, whether or not it supports termination, and to give written reasons for terminating benefits.

Dr. Diaz provided the strongest evidence in support of the Applicant’s claim that she remained disabled in September 1993. However, Dr. Diaz found the Applicant to be much more disabled than did the other experts who assessed the Applicant in the first three years. Within months of the accident, Dr. Lexier and Dr. Evans reported that the Applicant could return to her regular work after only a few more weeks of physiotherapy. I find that the Applicant improved while participating in the HRC program in early 1991. She gave up on her single attempt to return to work in August 1991 after only a few days, and did not try again. When Dr. Diaz then sent her back to HRC, their opinion was unchanged; they believed she could return to her regular duties. The Applicant also improved her functional abilities while attending active physiotherapy in Mississauga in 1993. I believe that in September 1993, the Applicant could have returned to work as a cleaner with no more significant restrictions and modifications than she had worked with before the accident.¹²

Disability after Benefits were Terminated

In order to receive weekly income benefits after 156 weeks, the Applicant must establish, on a balance of probabilities, that her accident-related injuries continuously prevent her from engaging in any occupation for which she is suited by education, training or experience. I do not accept the Insurer’s submission that "any" unskilled job is suitable for the Applicant. In my view, the alternative job must be comparable to the Applicant’s pre-accident job in nature, status and remuneration, and must be identified fairly and realistically considering the Applicant’s educational and employment history, abilities and vocational interests. The Insurer adduced no evidence of any particular job which might be suitable for the Applicant. In this case, I am inclined to think that cleaning is the only suitable work for the Applicant, as it is the only work she has ever done and she has only elementary education in Portuguese. However, I need not decide this issue because I find that the Applicant’s accident-related injuries do not prevent her from working in her pre-accident capacity as a cleaner. I do not accept Mr. Shields' submission that the test under section 12(5)(b) is less stringent than the section 12(1) test because the phrase "essential tasks" is deleted. In any event, I am not satisfied that the Applicant’s residual accident-related symptoms continuously prevent her from engaging in the occupation of office cleaner.

After benefits were terminated, the Applicant’s right shoulder became the main focus of investigation. In December 1993, Dr. Diaz referred the Applicant to Dr. George M. Vincent, an orthopaedic specialist. Dr. Vincent found that the Applicant was tender over the anterior acromion and that "an impingement sign was positive." He reported that the Applicant showed evidence of rotator cuff tendonitis, and put her on Mobiflex.

Contrary to the Applicant’s June 1993 shoulder ultrasound, an arthrogram ordered by Dr. Vincent in February 1994 revealed no evidence of rotator cuff tear or other abnormality. However, when the Applicant saw Dr. Uddin on February 23, 1994 she was still complaining about right shoulder and arm pain, and her right shoulder was still "2+" tender, though range of motion was "nearly normal."

In July 1994, the Insurer referred the Applicant to Dr. Anthony M. Galea, a sports medicine specialist at the Toronto West Rehabilitation Services Inc., for assessment. Dr. Galea diagnosed myofascial pain syndrome of the cervical and shoulder girdle muscles, myofascial pain syndrome of the low back, impingement syndrome of the right shoulder, mild anxiety and significant deconditioning. Based on functional tests performed at the clinic, Dr. Galea’s opinion was that the Applicant should be able to return to her job as a cleaner without restrictions, following a work-hardening program of six to eight weeks duration.¹³

On behalf of the Applicant, Mr. Shields pointed out that the Insurer never offered to provide the programs recommended by Dr. Galea. In failing to provide a rehabilitation program recommended by its own expert, an insurer risks an arbitrator concluding that the insured person continues to be entitled to weekly benefits until the program is provided. However, I was not persuaded by Dr. Galea's report. I place some significance on Dr. Galea's opinion that the Applicant could return to her regular duties, without restrictions, after a work-hardening program. As I read Dr. Galea's report, he recommended work-hardening because the Applicant was pain-focused and deconditioned, not because he accepted any objective limitation to her abilities. Moreover, the tests conducted at the clinic produced inconsistent results. I find nothing in the Applicant’s medical file that would explain the almost total disability the Applicant displayed on Cybex testing. The Applicant's BTE Dynamic Lift test showed the following lifting abilities:

MAXIMUM LIFTS

Floor to waist 19 pounds

Shoulder to Overhead 18 pounds

REPETITIVE LIFTS

Floor to waist Avg. Weight 12.8 lbs./4 repetitions

Shoulder to overhead Avg. Weight 13.4 lbs./4 repetitions

ISOMETRIC LIFTS

Carrying 18 pounds 6 seconds x 3 sets

Pushing 18 pounds 4.5 seconds x 3 sets

Pulling 11 pounds 4.5 seconds x 3 sets

Ms. Bebie, the clinic assessor at Toronto West, initially recommended a six- to eight-week active rehabilitation problem focusing on the Applicant’s right shoulder, low back and right knee, followed by a reassessment. Individual therapy emphasizing pain management was also recommended, because Ms. Bebie noted that the Applicant was pain-focused during the assessment. In an addendum to the report, Ms. Bebie restricted the Applicant to light occupational tasks and recommended that she avoid lifting more than 13 pounds, pushing and pulling more than 4.5 seconds, and standing for longer than 40 minutes. Ms. Bebie reported that the Applicant was too weak to manoeuvre a cart, and could not vacuum floors or clean washrooms for any extended period. She felt that the Applicant could dust and clean desks if she had a rest every 30-35 minutes.

In cross-examination at the hearing, the Applicant agreed with Mr. McClelland that she is not disabled from cleaning desks, phones and blinds, emptying waste into the garbage bag on the cart, moving the cart from office to office, stocking bathroom supplies, and inspecting offices cleaned by others. The Applicant also admitted that she has continued since the accident to cook, do the dishes, and do the laundry, although she testified that her daughter does all the other housework. All these tasks involve sustained working with the arms in a forward reaching position while standing. I find that the Applicant’s job, as modified because of her pre-existing back and right shoulder problems, fell within the restrictions set out by Ms. Bebie.

On the morning of July 11, 1994, Gordon Pappin, a private investigator, observed the Applicant for about an hour and a half while she sat on her back steps slicing vegetables. She was bent over at the waist and looking down as she worked, and she would occasionally turn to her left to get more vegetables. Mr. Pappin notes that she straightened up "occasionally," but he did not believe that she did so more often than an uninjured person would do. After about 50 minutes, she stood up, then bent over at the waist, sat down, and continued slicing vegetables for another 40 minutes. She then stood up, removed a sweater, bent over to pick up a box, bushel basket and garbage bag, which she tied up and placed on the ground. The Applicant then watered the garden for "a few minutes."¹⁴ Mr. Pappin testified that he observed no signs of discomfort while he observed the Applicant.

The surveillance videotape was not available for my review. Based on Mr. Pappin’s report, still photographs (which were of poor quality) and testimony, I find the surveillance evidence to be of limited use. It does, however, demonstrate that the Applicant was capable of working at a single task for an hour and a half while sitting forward with her elbows resting on her thighs. I am not persuaded on the basis of the evidence I heard, that the Applicant's straightening up "occasionally" and standing twice signified disabling pain and stiffness; she continued with her task afterwards. I find the surveillance evidence difficult to reconcile with the neck and right shoulder and arm pain claimed by the Applicant.

Nor am I persuaded that reports prepared after the Toronto West assessment establish ongoing disability. Contrary to the Applicant’s testimony that her low back pain is her most serious problem, the more recent medical reports show that the Applicant’s main problems were right shoulder and arm pain and right hand numbness. I accept that the Applicant experiences ongoing pain in her right shoulder and arm, aggravated by overhead work, but I am not satisfied that the problem continuously prevents her from working as a cleaner.

Aside from her underlying osteoarthritis, the doctors have offered several possible diagnoses for the Applicant’s right shoulder problems: soft tissue injury (Dr. Lexier), periarthritis (Dr. Uddin, November 1991), rotator cuff tendonitis (Dr. Tanzer and Dr. Vincent), and impingement syndrome (Dr. Galea). None of the experts have noted bruising or other external sign of injury, joint noises, instability, muscle wasting or shoulder weakness.

Aside from tenderness, variable findings of reduced mobility are the only signs of right shoulder injury. Two months after the accident, when the most severe post-traumatic symptoms would be expected, Dr. Lexier found that the Applicant had full range of right shoulder motion. Two days later, Dr. Evans, assessing the Applicant at the Insurer’s request, reported that while passive motion was full, the Applicant voluntarily resisted moving her arms above shoulder height. In February 1991, Dr. Uddin reported only that the Applicant had "painful range of movement" in both shoulders. The Applicant seems not to have complained about shoulder problems to the HRC during either of her programmes there in 1991, though she did complain about neck pain radiating to the elbow. The first record of restricted right shoulder mobility is Dr. Uddin’s finding of November 13, 1991 - 14 months after the accident - that range of motion was reduced about 30 per cent. In subsequent reports, Dr. Uddin reported that the shoulder was stiff, that motion was painful, or that mobility was reduced by an unspecified amount. In August 1992, Dr. Tanzer, to whom the Applicant was referred by her counsel, found that the Applicant had full but painful movement of the shoulder, with tenderness over the rotator cuff, but no overt impingement signs. He concluded that she had "very mild evidence of rotator cuff tendonitis." By February 1994 and again in October 1994, Dr. Uddin found full range of motion. Dr. Uddin’s last report (May 4, 1995) showed a significant change: internal rotation was now reduced by about 50 per cent and the wrist also had restricted mobility. In February 1995, Dr. Vincent reported that the Applicant had "no significant improvement" in her shoulder symptoms. He continued to believe she had rotator cuff tendonitis, and recommended acromioplasty should the symptoms persist.

The medical evidence indicates that the Applicant’s right shoulder problems worsened with the lapse of time since the accident. In my view, this suggests that these complaints are mainly related to the Applicant’s pre-existing osteoarthritis, worsened by ongoing wear and tear and the Applicant’s severe deconditioning. Moreover, I find that the Applicant’s failure to undergo the treatments recommended by Dr. Uddin (analgesic and corticosteroid injection) and Dr. Vincent (acromioplasty), or to engage in an ongoing exercise program, suggest that her symptoms were not so serious as to be disabling.

Dr. Diaz testified that the Applicant first complained about wrist and hand symptoms on June 13, 1991, about nine months after the accident. She agreed with the Insurer’s counsel that the Applicant may have carpal tunnel syndrome, a condition which usually results from repetitive wrist movement rather than trauma. She also agreed that obesity is a risk factor for this condition, and that the Applicant, as a woman between the ages of 30 and 60, is in the highest risk group for carpal tunnel syndrome. Dr. Diaz speculated that the Applicant’s right wrist and hand symptoms could be related to her fibromyalgia, but I received no evidence linking the two conditions.

Psychiatric Problems

Dr. Diaz referred the Applicant to Dr. Adrian N. Hanick, a psychiatrist, who assessed her on January 6, 1993 and a dozen more times through 1995. At the time of the hearing, the Applicant continued to see him on a monthly basis. Dr. Hanick prescribed sleeping pills and anti-depressants. In her testimony, the Applicant said she was unsure whether Dr. Hanick was helping her. From the Applicant’s description, I gather that Dr. Hanick provided supportive therapy rather than therapy directly related to the Applicant’s chronic pain.

In his report dated August 5, 1995, he gave his opinion that the Applicant remained "fully disabled in terms of her previous type of work or for any type of work for which she has aptitude or experience or training." He expected her disability to "continue on a quite protracted basis, if not indefinitely."

There are several difficulties with Dr. Hanick’s report. First, he did not review the Applicant’s medical file before preparing his report, but relied entirely on the Applicant's description of her symptoms and their disabling effects. For example, his diagnosis of post-concussional disorder depended on the Applicant’s telling him that she lost consciousness in the accident, a claim I do not accept. Dr. Hanick also accepted that the Applicant was asymptomatic before the accident. Secondly, Dr. Hanick put forward a number of diagnoses¹⁵ for the Applicant's musculoskeletal problems and headaches, although he did not do a physical examination or review her medical file, and is not an orthopaedic specialist, neurologist or rheumatologist. I place little weight on his assessment of the Applicant's physical condition.

In any event, Dr. Hanick’s report suggested that any symptoms she may have are mild and far from disabling. He says:

Whereas she has not been plagued by any greater or more persistent level of depression, she still suffers some intermittent and milder undercurrent of dysphoria, ...

Although he referred to acute distress disorder and chronic adjustment disorder with features of anxiety and mild despondency, and alluded to repetitive worries and apprehension while riding in a car as a passenger, Dr. Hanick made no particular psychiatric diagnosis. I am unable to read his report as stating that the Applicant suffers from a disabling or significant psychiatric problem. The report suggests that Dr. Hanick’s opinion of the Applicant’s disability was mainly based on her description of her physical symptoms. Indeed, the Applicant testified at the hearing that her psychiatric problems do not prevent her from returning to work.

The Applicant first saw Dr. Hanick in January 1993, about two and a half years after the accident. Dr. Hanick’s August 1995 report was requested by Mr. Shields on the Applicant’s behalf. I think it likely that the report was written for the purpose of supporting the Applicant’s claim. In the absence of any other evidence of significant psychiatric problems, I am not satisfied that the Applicant suffers from significant or disabling psychiatric symptoms.

Special Award:

Section 282(10) of the Act provides that if an arbitrator finds that an insurer has unreasonably withheld or delayed payments, he or she shall order a special award "in addition to awarding the benefits and interest to which an insured person is entitled." In this case, since I award the Applicant no benefits, she is not entitled to a special award.

Expenses:

Although the Applicant was not successful, I find this an appropriate case in which to exercise my discretion to award the Applicant her expenses incurred in the proceeding, subject to the limits set out in Regulation 664, R.R.O, 1990.

Order:

1. The Application is dismissed

2. The Insurer will reimburse the Applicant for her expenses incurred in respect of the arbitration, subject to the Expenses Schedule¹⁶ Any dispute about the amount payable may be referred to an arbitrator.

March 7, 1997

Nancy Makepeace 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. 2Exhibit 2, Tab 9, p. 4
3. 3Exhibit 1, Tabs 5 and 7
4. 4osteoarthritis is described as "degenerative change in the surface of a joint resulting from wear and tear" in Personal Injury: A Medico-Legal Guide to the Spine and Limbs, D.J. Ogilvie-Harris and G.J. Lloyd (Canada Law Book, 1986) p. 338.
5. 5Exhibit 3, Dr. Diaz' note of March 2, 1990. Dr. Diaz testified that the Applicant injured both hips on March 16, 1987, when she fell on the street onto her right side.
6. 6The results were consistent with a multinodular goiter.
7. 7An osteoma is "a benign, slow-growing tumour composed of well-differentiated, densely sclerotic, compact bone, usually arising in membrane bones, particularly the skull and facial bones." (Dorland’s Illustrated Medical Dictionary, 28th Edition)
8. 8A meningioma is "a benign, slow-growing tumour of the meninges, usually next to the dura mater..." The dura mater is "the outermost, toughest and most fibrous of the three membranes (meninges) covering and brain and spinal cord." (Dorland's Illustrated Medical Dictionary, 28th Edition)
9. 9Exhibit 2, Tab 9, p. 3
10. 10Dorland’s Illustrated Medical Dictionary defines "periarthritis" as "inflammation of the tissues around a joint" and "periarthritis of the shoulder" as periarthritis "occurring in the shoulder joint, including adhesive capsulitis and various types of bursitis."
11. 11Mass and State Farm Mutual Automobile Insurance Company (October 16, 1996), A-015935
12. 12Since the Insurer did not seek repayment of benefits paid between September 18, 1990 and September 18, 1993, there is no need for me to determine exactly when the Applicant stopped being entitled to weekly benefits. Based on the minimal evidence I received about the Applicant's single attempt to return to work and the other expert reports pertaining to this period, I suspect the Applicant could have returned to work much earlier than September 1993.
13. 13Dr. Galea's report of July 21, 1994 (Exhibit 2, Tab 16) and his report of August 23, 1994 (Tab 17), both prepared for the Insurer, are substantially the same except for a few minor differences. Although I heard no explanation for there being two different versions of the report, I do not find the differences significant. Dr. Galea’s diagnoses and recommendations were the same in both reports.
14. 14Exhibit 2, Tab 28
15. 15Including chronic myofascial pain syndrome, carpal tunnel syndrome, mechanical low back dysfunction syndrome, posterior facet joint syndrome, chronic pain disorder, and post-traumatic headaches with tension and vascular features, as well as post-concussional disorder.
16. 16Regulation 664, R.R.O. 1990