Neutral Citation: 1997 ONICDRG 70
OIC A-012705
ONTARIO INSURANCE COMMISSION
BETWEEN:
JEAN M. MAGYAR
Applicant
and
PILOT INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Jean M. Magyar, was injured in a motor vehicle accident on February 26, 1992. She applied for and received statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under Ontario Regulation 672.1 Pilot terminated weekly income benefits on January 31, 1993. The parties were unable to resolve their disputes through mediation and Ms. Magyar applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Ms. Magyar entitled to weekly income benefits after February 1, 1993, pursuant to section 12(1) and 12(5)(b) of the Schedule?
Is Ms. Magyar entitled to supplementary medical benefits to cover the cost of the reports of Dr. Kaplan and Dr. Mancini, pursuant to section 6(1) of the Schedule?
Is Ms. Magyar entitled to a special award pursuant to section 282(11) of the Act because Pilot unreasonably delayed or withheld benefits?
Ms. Magyar also claims interest on any amounts owing, and her expenses incurred in the hearing.
Result:
Ms. Magyar is not entitled to weekly income benefits after February 1, 1993.
Ms. Magyar is not entitled to a special award against the Insurer.
Ms. Magyar is entitled to her expenses of the arbitration, including the costs of the reports of Drs. Kaplan and Mancini.
Hearing:
The hearing was held in Kitchener, Ontario, on November 1 and 2, 1995 and April 18, 1996. The matter was adjourned after the first two days of hearing to allow the parties to conduct additional medical examinations of Ms. Magyar. Additional written submissions were received from counsel on May 2 and May 18, 1996.
Present at the Hearing:
Applicant:
Jean Magyar
Ms. Magyar's
Gregory Brimblecombe
Representative:
Barrister and Solicitor
Pilot's
Grace Pang
Representative:
Barrister and Solicitor
Witnesses:
Jean Magyar
Dr. A. Patel-Christopher
Katherine Wilson
Exhibits:
The parties filed five exhibits.
Evidence and Findings:
Background
Ms. Magyar was injured in a motor vehicle accident on February 26, 1992. She was 52 years old at the time and a resident of Kitchener, Ontario. She was attempting to cross the street at a cross-walk when she was struck or shoved by a car turning right. She hit her head and left elbow on the pavement. She testified that she lost consciousness briefly. She experienced pain in her head, left arm, left elbow, right leg and mid to lower back immediately after the accident.
Ms. Magyar was taken by ambulance to the Kitchener-Waterloo Hospital, where she was treated by Dr. J.M. Tallon, who diagnosed soft tissue injuries to the occiput, left elbow and left hip. Dr. Tallon referred her to her family physician and released her from hospital on the same day. Three days later, Ms. Magyar experienced severe groin pain. She thought this might be from a hernia caused by the hood ornament on the car that struck her. She returned to the Kitchener-Waterloo Hospital on March 5, 1992 with abdominal pain, was examined, and again referred to her family physician.
Ms. Magyar saw her family physician, Dr. Shah Deen, three times in the next six weeks and complained of pain in her neck, upper back, abdomen and groin, as well as severe headaches. Ms. Magyar later felt that Dr. Deen was not sympathetic to her concerns and, accordingly, changed family physicians. Her second family physician, Dr. A. Patel-Christopher, began to see her in November 1992 and noted Ms. Magyar's initial concerns as upper back, neck and chest pain. Approximately ten months later, Ms. Magyar complained to Dr. Patel-Christopher of lower back pain. Ms. Magyar continues to complain of pain in her lower back, lower right leg and chest, as well as shortness of breath, fatigue, panic attacks and various cognitive and emotional difficulties.
Ms. Magyar's daughter, Ms. Katherine Watson, testified that her mother was extremely active before the accident and has not been the same person since. Her mother was in severe pain following the accident, and had overwhelming physical problems while at the Kitchener-Waterloo Hospital. She is now constantly anxious, and generally shies away from activities. Ms. Watson testified that her mother wanted to stay active following the accident, but did not want to be drained. She stated that, with her encouragement, Ms. Magyar looked for clerical jobs following the accident, but only those which were not fast-paced, did not have a lot of phone work and were part-time.
Prior to the accident, Ms. Magyar had worked in a number of secretarial/clerical/receptionist positions. This involved dicta-typing, answering telephone calls, preparing accounts payable and accounts receivable, computer entry, invoicing, data entry and financial statement typing. She worked briefly in retail sales in 1985.
Ms. Magyar received her Grade XII Graduation Diploma from Fergus High School in 1957, as well as a Special Commercial Diploma. She has three grown children and was separated from her husband in 1985.
She worked full-time as a receptionist/clerk-typist at the Ontario New Home Warranty Program from 1988 until the time of the accident. This position involved screening incoming calls (approximately 40 per day), responding to telephone inquiries and complaints, data-computer entry, filing, preparing correspondence, ordering supplies, sorting and shelving supplies and handling various other clerical duties. She was required to lift 20-30 lb. boxes of paper, to climb and bend to shelve supplies, and to occasionally deal with irate callers on the phone. Ms. Magyar described the job at the Program as physically strenuous and, to some extent, mentally stressful.
Ms. Magyar's position in this arbitration is that, as a result of the motor vehicle accident, she has suffered a substantial inability to perform the essential tasks of her pre-accident employment (section 12(1) of the Schedule) and has been rendered continuously disabled from engaging in any occupation or employment for which she is reasonably suited by education, training or experience (section 12(5) of the Schedule). The Insurer's position is that Ms. Magyar's difficulties in returning to employment do not result from the motor vehicle accident, but from various other pre- and post-accident emotional and physical problems. It is settled law that Ms. Magyar bears the onus of establishing entitlement under sections 12(1) and 12(5) of the Schedule on a balance of probabilities.
Medical History:
Pre-Accident
Ms. Magyar's evidence was that she had only missed two days from work due to illness in the four years she worked at the Ontario New Home Warranty Program.
Ms. Magyar was born with a congenital heart defect: pulmonary stenosis. Corrective surgery for this problem did not occur until 1956, when Ms. Magyar was 16 years old. She had had significant problems with shortness of breath and skin discolouration prior to that. Apparently, Ms. Magyar also had an atrial septal defect which was not addressed in the 1956 heart surgery. She was told that this was a natural opening across the valve and would probably close by itself. She suffered from a heart murmur afterwards and reported in March 1992 to Dr. R. Hutfluss (an anaesthetist at St. Mary's General Hospital) that she had had an episode of severe heart palpitations and shortness of breath approximately a year earlier. She stated that she had not had any similar episodes since that time. She told Dr. Hutfluss that she suffered recurrent chest infections which would frequently develop into bronchitis. However, she stated that she had not seen a heart specialist since 1961.
Dr. Hutfluss stated that:
"[Ms. Magyar was] quite remarkable in the sense that with a significant congenital heart lesion, she managed to survive until the age of 16, even in spite of severe cyanotic spells and considerable limitations. Since her surgery, she certainly seems to have done very well over many years and her symptoms have not changed significantly in any way which is somewhat reassuring. Of concern is the one episode she had approximately a year ago where it sounds like she developed a supraventricular arrhythmia for a brief period of time which is certainly not surprising for this lady."
Dr. Hutfluss also noted that Ms. Magyar did not describe any chest pain, significant shortness of breath or orthopnea (breathing difficulty) at the time of the consultation. She admitted to Dr. Hutfluss that she became short of breath after climbing a couple of flights of stairs quickly, but indicated that she had no hesitation in walking normally. She described generalized fatigue at the end of a working day, but stated that she continued to work five days a week in an office without too much difficulty.
Ms. Magyar testified that she had experienced a neck problem for approximately six months in 1974, but that neither this nor her heart condition caused her any difficulty at the time of the 1992 motor vehicle accident. Ms. Magyar had left and right femoral hernia repairs in 1966 and 1985, respectively. She had also had a hysterectomy.
Dr. Deen, Ms. Magyar's family doctor from 1986 to 1992, reported that Ms. Magyar had always been healthy except for the open heart surgery in 1956 for pulmonary stenosis. A medical history taken in 1994 by Dr. Walter Kean, chief rheumatologist at McMaster University Medical Centre, notes Ms. Magyar as having had rheumatic fever, bronchitis, menopause and osteoporosis.
On the day of the accident, x-rays revealed "narrowing of the disc space at C5-C6 and C6-C7 with relative osteophytosis in keeping with degenerative disc disease...[and] osteoarthritic change in the mid to lower facet joints." Dr. Hutfluss observed that Ms. Magyar had a noticeable kyphosis (curvature of the spine) which Ms. Magyar maintained was due to her osteoporosis and degenerative disc disease.
Post-Accident
Ms. Magyar underwent physiotherapy from April to June 1992. Her neck and back improved somewhat, but she was still experiencing significant problems with left and right groin pain. Ms. Magyar saw Dr. Prakash Ahuja, a general surgeon, concerning these latter problems. She underwent surgery for repair of a recurrent left inguinal hernia in July 1992 and for a recurrent right inguinal hernia in December 1992. Ms. Magyar also had oral surgery in March 1992 to remove two impacted teeth.
In March 1993, Ms. Magyar's daughter was sexually assaulted. Ms. Magyar sought medical attention from Dr. Patel-Christopher for the stress she experienced as a result of this incident. Ms. Magyar was prescribed medication to reduce the stress.
Ms. Magyar developed chest pains, fatigue and shortness of breath at the end of 1993, but did not seek medical attention at that time. She again experienced chest pain and shortness of breath, as well as generalized body pain, depression, panic attacks and dizzy spells in the summer and fall of 1994. She thought that this was a further deterioration and general breakdown in her condition that had begun two years earlier. She also testified that the shortness of breath she developed at this time was entirely different from that she had experienced in 1991 prior to the motor vehicle accident. She was seen at this time by Dr. John Lackner, a radiologist, who reported that her pulmonary function studies were essentially normal when done at rest. She was referred for occupational therapy and trained in simple energy conservation techniques. With these, she found that her shortness of breath was much reduced and she felt better. She was discharged from this programme in early November 1994.
In October 1994, Dr. Patel-Christopher reported as follows:
"ECG's, blood work, Pulmonary function tests, lung scan and stress test all proved to be within normal limits. An ECHO revealed a small atrial septral [sic] defect, mild pulmonic regurgitation and mild atrial enlargement. The septal defect is on the basis of a congenital condition. A Bone scan revealed diffuse apophyseal degeneration on the thoracic spine and scoliosis of the thoracic spine (congenital scoliosis). A chest x-ray also revealed scoliosis to the left of the thoracic spine and also bilateral cervical ribs, and left hilar enlargement which could be due to scoliosis, but lymph node enlargement couldn't be ruled out."
Dr. Patel-Christopher noted that Ms. Magyar was being treated for depression and was undergoing hormone replacement therapy for menopausal symptoms.
In October 1994, Dr. Kean diagnosed clinical features of mid-back pain, probably related to facet joint disease, secondary to Ms. Magyar's rotoscoliosis. No clinical features of fibromyalgia were detected.
Ms. Magyar was seen in the McMaster University Pain Clinic by Dr. J. B. Forrest, professor of anaesthesia and medicine, in December 1994. She presented with a history of weakness and generalized pain over the chest, hands and feet, of approximately four months duration. She also complained of significant sleep disturbance. She was noted as having fairly extensive degenerative disc disease throughout her cervical, dorsal and lumbar spine. She was prescribed injections for the next 12 months to relieve her pain symptoms. These were discontinued after Ms. Magyar reported an increase of pain with them. As of May 1995, Ms. Magyar was still complaining of headaches, neck, left shoulder and chest wall pain, as well as stiffness in the left knee.
Rehabilitation and Ability to Return to Work:
Following the accident, Ms. Magyar received short and long term disability benefits, unemployment insurance benefits and statutory accident benefits for various periods. She was off work until March 1993, when she started as a temporary, part-time receptionist in the emergency department at the Kitchener-Waterloo Hospital. Ms. Magyar stated that she was hesitant to return to work at this time, but was required to do so due to her personal financial situation. She also testified that Dr. Ahuja told her that she could attempt a return to work 12 weeks after the December 1992 hernia repair surgery.
Within a week of beginning at the Kitchener-Waterloo Hospital, Ms. Magyar visited her family physician to ask for medication to deal with the stress of the job, as well as the situation with her daughter's sexual assault. Ms. Magyar also found the position physically stressful. She had to sit for prolonged periods of time, which aggravated her back pain. Getting up and down aggravated the pain in the area of her right-side hernia. Her clerical duties included preparing patients' admission and discharge charts, doing data entry and responding to incoming calls, inquiries and complaints. She could not do the job five days a week, at thirty-five hours per week, because it was too stressful. She gave away many of her shifts to other employees in order to keep up with the position. She persevered, nevertheless, because she felt this was a good job and a good career direction for her. She did, however, ask the head nurse if there was anything less stressful in emergency, but was told that due to the "social contract," nothing else was available.
When the temporary job at the hospital ended, Ms. Magyar was physically and emotionally exhausted, and did not look for another position until about a month later. Even then, she was very selective in her job search because she felt she was not well enough to cope with a difficult position. In mid-September, Ms. Magyar felt she needed a good rest and went to Florida with her daughter and grandchildren. She testified that she was not particularly active there (although she did do a lot of walking) and that the time away did not significantly change her condition.
Ms. Magyar was able to take some continuing education courses following the accident. She began a course in "medical terminology" in the fall of 1992, but had to stop because of her hernia problems and surgery. She took three courses in 1993 and 1994 dealing with legal secretarial procedures. She also took a three month computer course in the spring of 1994. Ms. Magyar testified that she was able to cope fairly well with these, although they involved a fair degree of sitting, note-taking and keyboard work. She also found it helped her psychologically. She stated that taking courses was different than doing a job because the courses were for interest, and did not involve pressures for completion.
Ms. Magyar resumed an active job search in April 1994 after the computer course was completed. She was again fairly selective in the positions to which she applied. She went to various interviews for clerical positions, but was not offered any of the jobs. She had emotional difficulty completing the interviews, and had her daughter accompany her to many of them for this reason.
Ms. Magyar testified that, at the time she took the job at the Kitchener-Waterloo Hospital, she would not have been able to perform 20 to 30 per cent of her former tasks at the Ontario New Home Warranty Program, which was lifting, shelving and unpacking files. She also stated that she would only have been able to do approximately half of the remaining 70 per cent of tasks, as she could not sit for the time required to do the data entry functions, and generally could not keep up with the pace and stresses of the work. She stated that she can only sit continuously for ten to fifteen minutes now. However, she can do the actual answering of phones and typing.
Dr. Patel-Christopher testified that based on Ms. Magyar's current physical and emotional state, she is unable to return to work. Dr. Ronald Kaplan, a psychologist Ms. Magyar saw in late 1995, stated that "from a neuropsychological point of view, she is employable." However, he also felt that on the basis of Ms. Magyar's "psychiatric disorders and her pain and fatigue syndromes, she may well have substantial inability to perform....A work trial in an appropriate work setting (after all reasonable treatments are completed) would be the most appropriate way to determine employability at this time." Dr. Kaplan stated that Ms. Magyar's work at the Kitchener-Waterloo Hospital was not reflective of her real ability because "that particular environment may have been unduly stressful."
Causation:
The medical evidence in this case does not clearly establish that Ms. Magyar's condition is causally related to the motor vehicle accident.
Dr. Patel-Christopher testified that, in her opinion, it is highly probable that Ms. Magyar's symptoms are related to the 1992 motor vehicle accident. However, she stated that she could not say whether Ms. Magyar was disabled from working prior to July 1994; she could only say that Ms. Magyar was disabled from working after July 1994 due to shortness of breath. Dr. Patel-Christopher also reported in October 1994 that Ms. Magyar was unable to work "due to her symptomatology." She testified that none of the specialists had rendered an opinion relating Ms. Magyar's pain to the effects of the motor vehicle accident. However, she stated that the specialists had ruled out a number of diagnoses for Ms. Magyar's symptoms, such as fibromyalgia, rheumatism, and cardiac or respiratory problems. She testified that the impact involved in the accident could have aggravated Ms. Magyar's previously asymptomatic rotoscoliosis and that Ms. Magyar's depression was likely secondary to the accident (although Ms. Magyar's age, menopause and personal stressors also possibly contributed to her depression). Dr. Patel-Christopher was unable to say whether there was a correlation between Ms. Magyar's current breathing difficulties and those she experienced in 1991.
In June 1992, Dr. Deen, Ms. Magyar's former family physician, reported that Ms. Magyar's symptoms of neck, back and groin pain, as well her headaches were most likely due to the motor vehicle accident.
In July 1992, Dr. Tallon, the physician who assessed Ms. Magyar on the day of the accident, reported that,"from an emergency specialist's point of view" Ms. Magyar's injuries could be considered minor with no expected long term physical sequelae.
Ms. Magyar had undergone femoral hernia repairs in 1966 and 1985. She testified that her symptoms of groin pain resurfaced following the motor vehicle accident. In 1994, Dr. Ahuja, the physician who conducted the most recent hernia repairs, reported that Ms. Magyar had suffered an "exacerbation of her previous medical condition of hernia repair" and that surgery confirmed a "recurrence of hernias bilaterally." However, he stated that "whether the genesis of these recurrences was secondary to the car accident is difficult to prove, but exacerbation of undetected hernias may happen if there is sudden contractions and increase of intra abdominal pressures which can happen during severe impact." He also stated that Ms. Magyar "could have suffered silent recurrences [to her hernia repairs] which were asymptomatic until the accident, though these can manifest also due to increased heavy lifting or sometimes due to weaknesses in the abdominal muscles."
In August 1994, Dr. Lackner, a cardiologist who saw Ms. Magyar concerning chest pains, felt that Ms. Magyar did not have coronary artery disease, that her previous heart surgery had not "let her down" and that her heart was not "unduly stressed." Dr. Lackner stated that he thought Ms. Magyar was depressed and that her chest pain was simply one of the various aches and pains she was experiencing, the cause of which would be "very hard to figure out."
In October 1994, Dr. Kean, a rheumatologist, reported that Ms. Magyar's symptoms of mid-back pain were probably related to facet joint disease, secondary to her rotoscoliosis. He was not able to detect any clinical features of fibromyalgia. He did not comment on the relationship, if any, of Ms. Magyar's symptoms to the motor vehicle accident.
Dr. Kaplan carried out a psychological and neuropsychological assessment of Ms. Magyar in late 1995. Dr. Kaplan indicated that his report was prepared without the benefit of the findings of the psychiatric assessment he had recommended for Ms. Magyar and that the information obtained from his assessment needed to be integrated with the existing physical and functional examinations to "arrive at the most accurate estimate regarding functional disability in the workplace." Dr. Kaplan indicated that the "personality assessment inventory" he took of Ms. Magyar offered "several diagnostic considerations: major depressive episode, generalized anxiety disorder and somatoform or pain disorder." He also stated that the assessment was "strongly suggestive" of these conditions.
Dr. Kaplan found that the motor vehicle accident "may have been an occasion for minor brain injury" and that the accident was sufficiently disturbing and frightening to "leave an individual with post-traumatic anxieties." However, he also stated that the sexual assault of Ms. Magyar's daughter was an event which could "in itself, produce significant psychological consequences and disorders for a parent." He also stated that "another important factor is that her recently diagnosed physical disorder [i.e. rotoscoliosis] is the type where symptoms can mimic psychiatric disorder, therefore, producing some diagnostic complexity and confusion." Dr. Kaplan, nevertheless, concluded that Ms. Magyar's need for comprehensive psychiatric treatment and a comprehensive pain management programme "stems primarily from the injuries suffered in the motor vehicle accident."
After seeing Dr. Kaplan, Ms. Magyar was examined by Dr. C. Mancini, a psychiatrist at the Anxiety Disorders Clinic at the Chedoke-McMaster Hospital in Hamilton. Dr. Mancini diagnosed Ms. Magyar as suffering from major depression and panic disorder with agoraphobia. However, Dr. Mancini does not address the issue of the cause or source of Ms. Magyar's symptoms. He simply states that Ms. Magyar "actually has a fairly typical clinical picture of a patient with an acute onset of depressive symptoms and, in particular, panic attack symptoms, as they tend to overuse the health care system in an attempt to find a physical reason for their depressive and panic attack symptoms. This is a woman who has had some very legitimate medical problems in the past, and there does not appear to be any history of abuse of the health care system in the past. As well, she gives no prior history of depressive symptoms or anxiety symptoms despite having had at least one very stressful life event occurring in the past, i.e., the breakup of her marriage."
The Insurer arranged to have Ms. Magyar seen by Dr. A. I. Margulies, a psychiatrist, in March 1996. Dr. Margulies found that Ms. Magyar was a "profoundly needy" and "inwardly unhappy" individual as a result of her early cardiac problems and abusive marriage. He also found that "while Mrs. Magyar may have struck her head [in the accident], it is extremely unlikely that she sustained any underlying injury to her brain." He concluded as follows:
"[Ms. Magyar developed] a somatoform disorder (undifferentiated) wherein her complaints of weakness, anergia, shortness of breath, together with symptoms of pain, were reflective of underlying psychological factors....While physiogenic factors may play a role in her ongoing disability, psychogenic ones have become far more prominent in her conviction of her dysfunction. In her perception of herself as sick, disabled and therefore bad and undeserving, she has regressed and given up what prior independence she may have attained while looking in the present for the caring and nurturing which she lacked throughout her significant developmental years. As long as this persists, so will Mrs. Magyar remain symptomatic."
Analysis and Conclusion:
Based on all of the evidence, I find that Ms. Magyar has not discharged the onus of establishing, on a balance of probabilities, that the injuries received in the motor vehicle accident disabled her from returning to her pre-accident employment or a suitable alternative.
Causation
Although the motor vehicle accident appeared to be a serious one, Dr. Tallon, the physician who assessed Ms. Magyar on the day of the accident, diagnosed soft-tissue injuries which he said could be considered minor. Contrary to Ms. Magyar's testimony at the hearing, Dr. Tallon reported that there was no loss of consciousness at the time of the accident. Dr. Margulies stated that it was extremely unlikely that Ms. Magyar suffered any underlying brain injury in the accident. Dr. Kaplan only stated that the accident may have caused a minor brain injury. Ms. Magyar was released from hospital on the same day as the accident. Based on this evidence, I find that the initial injuries Ms. Magyar's suffered in the accident were relatively minor in nature.
None of the specialists who examined Ms. Magyar clearly stated that the motor vehicle accident caused her pain symptoms. Dr. Ahuja said that it would be difficult to prove that Ms. Magyar's bilateral hernia recurrences were secondary to the car accident, and that a severe impact (assuming one had occurred) might cause such an exacerbation. Dr. Lackner stated that the cause of Ms. Magyar's chest pains would be "very hard to figure out." Dr. Kean reported that Ms. Magyar's back pain was probably related to facet joint disease, secondary to her rotoscoliosis. He did not state that the accident caused her pain or aggravated her rotoscoliosis. None of the specialists found that Ms. Magyar's extensive degenerative disc disease had been aggravated by the accident.
Only Ms. Magyar's family physicians drew a connection between the accident and her pain symptoms. However, Dr. Deen only saw Ms. Magyar three times in two months following the accident and did not have the reports of Dr. Ahuja or Dr. Kean concerning Ms. Magyar's complaints of neck, back and groin pain. Dr. Patel-Christopher testified that it was "highly probable" that Ms. Magyar's pain symptoms were related to the accident, despite the fact that none of the specialists to whom she had referred Ms. Magyar made such a finding. She was also only able to say that Ms. Magyar's rotoscoliosis could have been aggravated by the accident. Based on this evidence, I am unable to find that Ms. Magyar's pain symptoms are, more probably than not, related to the motor vehicle accident.
Similarly, none of the specialists clearly state that Ms. Magyar's post-accident emotional problems are related to the accident. Dr. Kaplan stated that the accident might have caused a minor brain injury and that it was of the type that can result in post-traumatic anxieties. However, he stated that the sexual assault on Ms. Magyar's daughter could, in itself, produce significant psychological consequences for a parent. His report also does not mention a number of factors identified by Dr. Patel-Christopher as relevant to Ms. Magyar's post-accident emotional condition, namely, her age, inter-relational family problems and menopause. Dr. Kaplan also appears to suggest that Ms. Magyar's rotoscoliosis can produce symptoms which "mimic psychiatric disorder." Finally, he states that his report was prepared without the benefit of the psychiatric assessment he had recommended, and that psychiatric and pain treatment should only be offered to Ms. Magyar "once the medical investigations have been completed and her physicians are satisfied with their diagnoses, and when no further medical treatments are possible." In my view, these difficulties, coupled with the absence of a probable relationship between Ms. Magyar's physical symptoms and the accident, significantly diminish the weight of Dr. Kaplan's general conclusion that Ms. Magyar's need for psychiatric and pain management treatment arises primarily from the injuries she sustained in the accident.
Dr. Mancini made no comments on the relationship, if any, of the accident to Ms. Magyar's emotional difficulties. He also said that "she denied any significant symptoms of Post-Traumatic Stress Disorder." Neither Dr. Mancini nor Dr. Margulies referred to the sexual assault on Ms. Magyar's daughter. It appears that Ms. Magyar did not mention this in the interviews, although Dr. Margulies claimed to have reviewed Dr. Kaplan's report before preparing his own. In light of Dr. Kaplan's view of the potential significance of the assault, I am not prepared to infer that neither Dr. Mancini nor Dr. Margulies felt that the assault was important enough to mention in their reports. In my view, both physicians would likely have found this fact important in assessing Ms. Magyar's post-accident emotional condition.
Dr. Margulies diagnosed Ms. Magyar as having somatoform disorder (undifferentiated). Dr. Kaplan diagnosed major depressive episode and generalized anxiety disorder, as well as a somatoform or pain disorder. Dr. Mancini found major depression and panic disorder with agoraphobia. In my view, the exact nature of Ms. Magyar's post-accident emotional condition has not been established. It is even less clear that it is related to the injuries she suffered in the motor vehicle accident. Assuming, however, that Ms. Magyar suffers from some combination of depression, anxiety and pain disorder, and assuming that her psychological problems are rooted in her ongoing physical symptoms, I am not, for the reasons outlined above, satisfied that those physical symptoms are causally related to the accident.
In particular, I am unable to accept the submission of Ms. Magyar's counsel that Dr. Margulies' diagnosis of somatoform disorder (undifferentiated) is sufficient to establish a relationship between Ms. Magyar's disability and the motor vehicle accident. Dr. Margulies appears to suggest that Ms. Magyar's condition deteriorated as a result of the accident: her pre-existing psychological state as "needy" and "unhappy" deteriorated as a result of the accident to produce physical symptoms and a social regression. However, there was no indication that Ms. Magyar suffered from psychological problems at the time of the accident. She suffered from real, but not accident-related physical problems, and, as discussed earlier, a variety of other factors potentially affected Ms. Magyar's post-accident emotional condition. I find it significant that Dr. Margulies did not discuss the stress Ms. Magyar experienced while working at the Kitchener-Waterloo Hospital nor the fact that she sought medication from Dr. Patel-Christopher to deal with that stress. I am, therefore, unable to accept the submission that the diagnosis of somatoform disorder (undifferentiated) is sufficient to establish a causal connection between Ms. Magyar's disability and the accident, particularly in light of the fact that she may not have suffered from a pain disorder at all.
Therefore, in the absence of clearer evidence from the three specialists, I attribute little weight to Dr. Patel-Christopher's testimony that Ms. Magyar's depression is likely secondary to the motor vehicle accident. In any event, Dr. Patel-Christopher conceded that a number of other factors in Ms. Magyar's personal life could have contributed to her depression. It is significant that Ms. Magyar only sought medical attention for her emotional problems in March 1993 (after her daughter was assaulted) and again in the summer of 1994, well after the Kitchener-Waterloo Hospital position had ended and almost two and half years after the accident. This, in my view, significantly diminishes the likelihood that Ms. Magyar's emotional problems are related to the accident, despite the fact that she appeared to be a fully-functioning individual beforehand.
I am, therefore, not satisfied, on a balance of probabilities, that Ms. Magyar's ongoing physical and psychological symptoms are causally related to the motor vehicle accident.
Disability
Even assuming that Ms. Magyar's symptoms were caused by the accident, I am not satisfied that they disabled her from returning to her pre-accident job between February 1993 and February 1995, or from returning to a reasonably suitable alternative after February 1995.
Ms. Magyar testified that, at the time she took the Kitchener-Waterloo Hospital job, she would not have been able to sit for the amount of time required to do the data entry functions of her job at the Ontario New Home Warranty Program. She said she would also not be able to keep up with the pace and stresses of the work or perform the physically demanding aspects of the job. This meant that she would only be able to perform about 35 to 40 per cent of her former tasks. Although this represented an honest attempt by Ms. Magyar to assess her earlier employability, the objective evidence at the time does not establish a substantial inability to perform her pre-accident tasks.
Dr. Ahuja released Ms. Magyar for work 12 weeks after her hernia surgery in December 1992. Ms. Magyar returned to a temporary position at the Kitchener-Waterloo Hospital from March to September 1993. This position involved prolonged sitting and was significantly more stressful than her pre-accident job. Ms. Magyar testified that the hospital job aggravated the pain in her right-side hernia; however, shortly after the job ended, she saw Dr. Ahuja and said that she was fairly satisfied with both hernia repairs and only experienced occasional twinges of pain in both her groins. Ms. Magyar also approached the Kitchener-Waterloo Hospital later in the fall of 1993 about further employment, but was told that no hiring was taking place. She was told that something might come up in administration or human resources.
Dr. Patel-Christopher saw Ms. Magyar six times between November 1992 and June 1994, but did not indicate that Ms. Magyar's symptoms prevented her from working. In particular, Dr. Patel-Christopher saw Ms. Magyar just after the hospital job ended and reported that although Ms. Magyar had tenderness in her back and midscapular area, there was no restriction in movement. Dr. Patel-Christopher also stated that prior to the summer of 1994, the issue of whether Ms. Magyar was able to work was never discussed.
Dr. Kaplan did not state that Ms. Magyar's psychological and pain symptoms prevented her from working. Specifically, he did not comment on her ability to return to work prior to February 1995 (the 156-week mark). He stated that "she may well have substantial inability to perform" and that an appropriate work trial would be required to determine her current employability. He also indicated that her work at the Kitchener-Waterloo Hospital was not reflective of her employability because of the highly stressful nature of that position. Ms. Magyar testified that she was hesitant to do a full-time job at the time she began work at the hospital. In my view, however, without supporting medical evidence of disability, Ms. Magyar's hesitance is not sufficient to establish a substantial inability to perform the essential tasks of her job.
Although Dr. Kaplan does not address the issue, Dr. Patel-Christopher's evidence does appear to establish that Ms. Magyar's emotional and physical symptoms between July and November 1994 (when she was discharged from therapy) were significantly disabling. I, therefore, find that Ms. Magyar was disabled from performing her pre-accident job during this period. However, as noted above, I am unable to find that this period of disability was causally related to the motor vehicle accident.
Therefore, I am unable to conclude that Ms. Magyar was substantially unable to perform her pre-accident employment, as a result of the injuries she sustained in the motor vehicle accident.
Similarly, I am unable to find that Ms. Magyar was disabled from returning to suitable alternative employment after the initial 156-week period. Dr. Patel-Christopher testified that Ms. Magyar's current physical and emotional condition would prevent her from working. However, she did not indicate whether this was in respect of any suitable position or only in relation to Ms. Magyar's pre-accident job. Dr. Kaplan was only asked to comment on Ms. Magyar's psychological ability to resume her previous occupation. He was not asked, nor did he make any specific findings, about Ms. Magyar's current ability to return to a reasonably suitable position. He commented on the need for an appropriate work trial to determine Ms. Magyar's employability; however, no independent vocational evidence was tendered showing Ms. Magyar's current abilities and limitations in relation to a potential return to work.
Ms. Magyar's pre-accident occupational background consisted of a series of secretarial/clerical/receptionist positions. Following the accident, Ms. Magyar attempted to return to part-time work in 1993 at the Kitchener-Waterloo Hospital. She was also interviewed for a number of clerical jobs (some of which were full-time positions), but had emotional difficulties with the process and was not offered any of the positions. She also took some courses in legal secretarial procedures and computers.
In my view, this limited evidence does not establish Ms. Magyar's inability to return to reasonably suitable employment. Although Dr. Mancini diagnosed Ms. Magyar as suffering from agoraphobia, Dr. Kaplan stated that her "phobic behaviours may interfere in some way in her life, but avoidance behaviours are not marked and will probably not preclude a relatively successful level of daily functioning" (emphasis added). Even assuming that Ms. Magyar's phobic or avoidant behaviour emanates in some way from the motor vehicle accident, I am not satisfied that they substantially disabled her from engaging in a job search and were the reason she was not offered any of the positions for which she was interviewed. Although Ms. Magyar was reluctant to attempt a return to full-time employment, this does not, in my view, establish that she was substantially disabled from performing such work. She did not, in any event, restrict herself to part-time positions in her job-search. I am not persuaded that she would have been incapable of performing full-time work, had such a position been available to her. Ms. Magyar is a capable and motivated individual. No vocational evidence was called suggesting that she was limited to performing the type of job she had at the time of the accident. Even assuming this to be the case, as long as the position permitted a fair degree of movement (which her pre-accident job appeared to do) and was not as stressful as the Kitchener-Waterloo hospital job (which her pre-accident job was not), it is not clear that Ms. Magyar could not perform such a job. No vocational evidence was tendered to suggest that clerical jobs which accommodated her disabilities were not available to Ms. Magyar. I am, therefore, not satisfied that Ms. Magyar's current physical and emotional condition prevent her from engaging in any occupation for which she is reasonably suited by education, training or experience.
Supplementary Medical Benefits and Special Award
In my view, the claim for supplementary medical benefits in respect of the reports of Drs. Kaplan and Mancini is more properly addressed under the heading of expenses. In any event, I am satisfied that the reports were reasonably required in relation to this arbitration and as a result of the injuries Ms. Magyar sustained in the accident.
Regarding the matter of a special award, no evidence was adduced to suggest that the Insurer unreasonably withheld or delayed the payment of benefits within the meaning of section 282(1) of the Insurance Act. Accordingly, I cannot order a special award in this case.
Expenses:
This arbitration was brought in good faith and raised legitimate issues for determination. The reports of Drs. Kaplan and Mancini were reasonably obtained in furtherance of the arbitration. I, therefore, exercise my discretion to award Ms. Magyar her expenses of the arbitration, including the costs of the two medical reports. Should the parties be unable to agree on the amount owing, they may apply to the Registrar for an assessment.
Order:
Ms. Magyar is not entitled to weekly income benefits after February 1, 1993.
Ms. Magyar is not entitled to a special award against the Insurer.
Ms. Magyar is entitled to her expenses of the arbitration, including the costs of the reports of Drs. Kaplan and Mancini.
April 24, 1997
Eban Bayefsky
Arbitrator
Date