Neutral Citation: 1998 ONFSCDRS 101
FSCO A97-000293
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SOPHIA GOGOS
Applicant
and
GENERAL ACCIDENT ASSURANCE CO. OF CANADA
Insurer
DECISION
Issues:
The Applicant, Sophia Gogos, was injured in a motor vehicle accident on November 8, 1995. She applied for and received statutory accident benefits from General Accident Assurance Co. of Canada ("General Accident"), payable under the Schedule.1 General Accident terminated weekly income replacement benefits on July 15, 1996. The parties were unable to resolve their disputes through mediation, and Ms. Gogos applied for arbitration at the Financial Services Commission of Ontario2 under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
In final submissions, the parties indicated that they would not be addressing two issues initially raised in the arbitration. Ms. Gogos indicated that she was content that any income replacement benefits be considered on the basis of $185 per week and the Insurer indicated that it was no longer disputing Ms. Gogos' claim for swimming expenses.
The issues in this hearing are:
Is Ms. Gogos entitled to income replacement benefits from July 16, 1996 onward, pursuant to section 7 of the Schedule?
Is Ms. Gogos entitled to supplementary medical benefits for prescriptions, pursuant to section 36 of the Schedule?
Ms. Gogos also claims interest on any amounts owing and her expenses incurred in the arbitration.
Result:
Ms. Gogos is entitled to income replacement benefits from December 26, 1996 to August 8, 1997, with appropriate interest.
Ms. Gogos is entitled to supplementary medical benefits for all of the prescriptions submitted except minocin, antivert and the prescriptions purchased at the Golden Mile Supercentre, with appropriate interest.
Ms. Gogos is entitled to her reasonable expenses of the arbitration.
Hearing:
The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on June 9 and 10, 1998. Those present at the hearing, the witnesses and exhibits are set out in the Appendix to this decision.
Evidence and Findings:
Background
Ms. Gogos was injured in a motor vehicle accident on November 8, 1995. She was a passenger in a car which was hit on the rear right-hand side. Her head was thrown backwards and forwards. She did not experience much pain at the time of the accident. However, the following morning, she awoke with a very stiff and painful neck. She also began to experience low back and right shoulder pain. In late 1996, Ms. Gogos began to suffer panic attacks. Despite some improvement following physical and psychological therapy, Ms. Gogos continues to complain of headaches and panic attacks, as well as of neck, shoulder and low back pain. She also complains of diminished concentration, dizziness, right hip and leg pain and numbness in the right arm and hand. Ms. Gogos now attends OHIP-funded physiotherapy for her pain complaints and sees a psychiatrist, Dr. J. Rajendra, once a month concerning her anxiety and cognitive problems. She maintains that her injuries have prevented her from returning to her pre-accident employment.
Prior to the accident, Ms. Gogos was a hairstyling instructor at Bruno S Schools of Hair Design. She testified that she worked Mondays to Fridays, 9:00 a.m. to 4:30 p.m., night shifts from 6:30 p.m. to 10:00 p.m. two to three times a week (in addition to her regular day shift) and on alternate Saturdays from 9:00 a.m. to 4:00 p.m. She taught groups of 60 students, usually with the assistance of two other instructors. She would demonstrate various hairstyling techniques on mannequins, students and paying customers. This involved walking up and down the rows of students supervising, providing guidance and physically demonstrating the required techniques. Her tasks involved prolonged standing and bending, lifting her arms to shoulder height and manipulating hairstyling instruments. She testified that she would perform various hairstyling demonstrations (lasting from a few minutes to an hour) regularly throughout the day in order to educate the students. Ms. Gogos also indicated that her job required a high degree of concentration and memory since she was dealing with a large number of students at different levels of proficiency and each learning different hairstyling techniques. She stated that she had no time for breaks and that her students required her full attention, patience and understanding.
Ms. Gogos did not suffer from any significant pre-accident medical conditions. However, in May 1995, Dr. E. Sayani, Ms. Gogos' family physician, reported that Ms. Gogos suffered from depression secondary to her divorce in 1993 and that she had suffered physical or mental abuse in her marriage. Ms. Gogos denied that she had had these problems. However, as discussed more below, even if Ms. Gogos had experienced these difficulties, I am not satisfied that they are significant in relation to her claim of post-accident disability.
Ms. Gogos has not returned to work since the motor vehicle accident. She maintains that as a result of the accident, she has suffered a substantial inability to perform the essential tasks of her pre-accident employment as a hairstyling instructor and that this satisfies the requisite test of disability under section 7(1) of the Schedule. She also maintains that the Insurer is required to cover the costs of prescriptions which she has reasonably incurred as a result of the accident, within the terms of section 36(1) of the Schedule. The Insurer denies that Ms. Gogos has met the requisite test of disability or that the costs of the prescriptions were incurred as a result of the motor vehicle accident.
Medical Opinions on Disability
A number of physicians have assessed Ms. Gogos ability to return to her pre-accident employment. In December 1996, Dr. Douglas Brown, a chiropractor, stated that Ms. Gogos "was unable to perform her normal work duties as a hairdressing instructor when she was under [his] care" (i.e. from September to October 1996). In January 1998, Dr. Sayani reported that Ms. Gogos probably needed three to four vocational counselling sessions to facilitate a return to work and that it was important that she return as soon as possible. Dr. Sayani also felt that while Ms. Gogos did not suffer a closed head injury, a neuropsychological assessment would determine whether, in relation to her complaints of memory and concentration problems, she had suffered a "soft head injury."
In August 1997, Dr. Rajendra reported that Ms. Gogos' panic attacks and anxiety levels had improved, but that she was still suffering from symptoms of depressive illness. Dr. Rajendra did not comment specifically on Ms. Gogos ability to return to work, but suggested further assessment and treatment with a psychologist and a physiatrist. In June 1998, Dr. A. Hirscheimer, a physician in Dr. Sayani's office, authored brief handwritten notes stating that Ms. Gogos could not, at that point, resume her work as a hairdresser and that she should be further evaluated by a physiatrist regarding her continuing complaints of pain. Dr. Hirscheimer did not testify, and according to Ms. Gogos, Dr. Hirscheimer did not know about her pre-accident job duties. Dr. Hirscheimer also did not explain her finding as to Ms. Gogos disability.
Other specialists found that Ms. Gogos was capable of returning to work. For example, in April 1996, Dr. Frank Lipson, a physiatrist, performed an independent examination of Ms. Gogos for the Insurer and concluded that Ms. Gogos suffered a soft tissue injury to her cervical and lumbar spine in the accident and that despite some continuing discomfort, she was capable of returning to her pre-accident job on a gradual basis over the next four to six weeks. A similar conclusion was reached by Ms. Jennifer Bowker, a kinesiologist who performed a functional capacities evaluation on Ms. Gogos in April 1996. In July 1996, Dr. Ronald Gitelman, a chiropractor, conducted a disability assessment (as a designated assessment centre - "DAC") of Ms. Gogos. He found that Ms. Gogos had a "bio-mechanical dysfunction in her upper cervical spine" that would benefit from three or four spinal manipulations followed by appropriate exercises, but that she was "physically capable of performing any physical activities relating to her personal care or her work as a hair dressing instructor that she wishes full time without any restrictions of any kind."
A medical-rehabilitation DAC was conducted in May 1997. The members of the DAC concluded that the only assistance Ms. Gogos required was an independent home exercise programme. In addition, Dr. D. Evans, an orthopaedic surgeon, recommended that Ms. Gogos first return to work on a part-time basis for four to six weeks and then return on a full-time basis. Dr. G. Moddel, a neurologist, found that from a neurological perspective, Ms. Gogos was not precluded from returning to work, but that she suffered from panic attacks, should continue psychiatric therapy and "try to reintegrate herself back into a normal work routine." Ms. Susan Wagar, a physiotherapist, recommended that Ms. Gogos gradually increase her level of functioning while being reassured that increased discomfort with such activity would be temporary in nature and not harmful.
As part of the DAC, Ms. Wagar and Mr. Chris Chapman, a kinesiologist, conducted a functional abilities' evaluation of Ms. Gogos. They stated that Ms. Gogos could "likely perform all of the required tasks of her pre-accident job[, but...] endurance may be an issue in returning to work." They also stated that "she would not likely be able to perform pre-accident duties on a full time basis initially, thus, if a graduated return to program [sic] is feasible, it would facilitate the process." Ms. Wagar and Mr. Chapman noted that they did not know the specific physical demands of Ms. Gogos' job. In fact, Ms. Gogos complained that none of the specialists who examined her (including the ones to whom her family doctor and counsel had referred her) asked about or understood her full job duties. She testified that all of these individuals were consequently incapable of giving valid opinions on the extent of her disability.
Ms. Gogos also disputed assertions in the medical and rehabilitation reports that she either appeared not to be or was not experiencing discomfort at certain points during the examinations. She disagreed with various percentages attached to her degree of pain or range of motion (although these were apparently her own reports to the specialists). She disputed any suggestion in the materials of improvement on her part (although, again, these were at times based on her own reports) or that she was capable of doing anything more than the lightest job. In particular, she disagreed with Dr. Sayani's January 1998 report that she should return to work as soon as possible. Finally, she stated that she did not know why she began to experience panic attacks, but that her inability to return to work was, in part, due to those anxieties and the fact that she required constant rest periods, something not feasible at her pre-accident job.
Analysis
Ms. Gogos bears the onus of establishing, on a balance of probabilities, 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. In my view, Ms. Gogos only satisfied this test during the acute phase of her panic attacks, namely, December 26, 1996 to August 8, 1997. She was not disabled to the extent required by the Schedule in the months between the Insurer's termination of benefits and the commencement of her panic attacks (July 16 to December 25, 1996) or after the point at which her panic attacks subsided (August 9, 1997 onward).
i) Disability: July 16 to December 25, 1996
Regarding the first period (between the termination of benefits and the beginning of her panic attacks), the bulk of medical and rehabilitation evidence establishes that Ms. Gogos was not substantially disabled from her work as a hairstyling instructor. Drs. Lipson and Gitelman, as well as the kinesiologist, Ms. Bowker, all found that Ms. Gogos was capable of returning to work. Only Dr. Brown reported that Ms. Gogos was unable to work, and this was only for the seven weeks in which he actually treated her. While Dr. Brown stated that the prognosis for Ms. Gogos' full recovery was poor, he also indicated that a further assessment would be required in order to determine her status following the period of treatment.
Ms. Gogos rejected suggestions in the reports of Drs. Lipson and Gitelman and Ms. Bowker that her physical condition had improved since the accident. However, Dr. Lipson had had the advantage of seeing Ms. Gogos twice between January and April 1996 and clearly documented an improvement in her condition. Dr. Lipson, in particular, began with the clear opinion that she was incapable of returning to work in January 1996, but then determined that she was no longer disabled in April 1996. Further, two functional capacities evaluations were performed in 1996 and the only area in which Ms. Gogos' condition significantly worsened was in overhead reaching, something not identified by Ms. Gogos as a frequent or essential requirement of her job as a hairstyling instructor. Other than this, her overall capacity remained the same or improved.
Ms. Gogos maintained that the specialists to whom the Insurer had referred her did not have sufficient information as to her pre-accident employment duties in order to render a valid opinion on her working ability. However, the kinesiologists used the Canadian Classification and Dictionary of Occupations' ("CCDO's") description of Ms. Gogos' job with specific modifications "to more accurately reflect the particular demands of her job" as the basis of their testing of Ms. Gogos' abilities. Moreover, there is no evidence that Dr. Brown had a more accurate understanding of Ms. Gogos' pre-accident employment duties than the other specialists and, in fact, Ms. Gogos maintained that he was equally unqualified to give a valid opinion of her ability to perform the essential tasks of her pre-accident job.
On the evidence before me, I find that the specialists who examined Ms. Gogos had an adequate understanding of her pre-accident duties and that Ms. Gogos physical condition did, in fact, improve in the months following the accident. I note that some of the evidence concerning Ms. Gogos progress emanated from Ms. Gogos herself, and I see no reason to question the accuracy of those who recorded Ms. Gogos as reporting significant improvement. I further find that, prior to the time when Ms. Gogos panic attacks began, she was, on balance, physically capable of returning to her previous employment. While Ms. Gogos testified that she was simply not capable of returning, and that she would know when she was ready, I prefer the objective evidence which, on balance, establishes the improvement in her physical abilities in relation to her pre-accident job as a hairstyling instructor.
ii) Disability: December 26, 1996 to August 8, 1997
A new phase in Ms. Gogos' condition began December 26, 1996, when she started to experience panic attacks. The Insurer maintained that Ms. Gogos has not established that her panic attacks were related to the motor vehicle accident. While the medical evidence did not speak directly to this issue, I am satisfied, on a balance of probabilities, that Ms. Gogos' emotional deterioration in the first half of 1997 was related to the motor vehicle accident. I rely on the following factors: Even assuming that Ms. Gogos suffered from depression prior to the accident as a result of her marital situation, it is unclear when or to what extent this occurred, and there is no evidence that she was receiving treatment for such problems in the months leading up to the accident. There is no evidence of a non-accident-related cause of the panic attacks. In particular, the Insurer did not offer any other explanation for this problem. Ms. Gogos testified that the attacks might be the result of the stress, pain and frustration she was experiencing due to the accident. She was forthright in admitting that she did not really know what caused the attacks.
Further, while neither Dr. Sayani nor Dr. Rajendra specifically related the attacks to the accident, their reports suggest that this was the case. In her January 1998 report, Dr. Sayani discussed the course of Ms. Gogos' treatment since her accident, including the treatment provided by Dr. Rajendra for Ms. Gogos' panic attacks and pain complaints. Dr. Rajendra's August 1997 report notes the history of Ms. Gogos' symptoms of pain and anxiety in relation to her pre- and post-accident medical history (including her marriage breakdown) without suggesting that the panic attacks arose from a non-accident-related source.
While I am hampered by the absence of direct medical evidence on the issue, I am satisfied on the evidence before me that Ms. Gogos' panic attacks are more likely than not related to the effects of the motor vehicle accident.
I am further of the view that the attacks prevented Ms. Gogos from returning to her previous job. Again, neither Dr. Sayani nor Dr. Rajendra specifically stated that these attacks prevented Ms. Gogos from returning to her prior employment. However, I accept Ms. Gogos' uncontradicted evidence that these attacks were severe and frequent until the summer of 1997 when Dr. Rajendra (and Ms. Gogos herself) reported that they had significantly improved. In light of Ms. Gogos' testimony as to the need for prolonged concentration, patience and understanding in her job as a hairstyling instructor and the fact that she could not reasonably expect to take frequent rest breaks, I find that Ms. Gogos' panic attacks and anxiety presented a significant impairment to her performing the essential tasks of her job. I note as well that the Insurer did not present any independent medical evidence suggesting that Ms. Gogos' emotional/psychological condition during this time did not prevent her from working and that Dr. Moddel (the neurologist in the DAC relied on by the Insurer) acknowledged the importance of Ms. Gogos receiving psychiatric treatment in the process of reintegrating herself back into the workforce. I, therefore, find, on the balance of the evidence before me, that Ms. Gogos' panic attacks substantially disabled her from returning to work until August 8, 1997.
iii) Disability: August 9, 1997 onward
Ms. Gogos' situation changed in the summer of 1997. She testified that the acute phase of her panic attacks lasted from December 1996 to May 1997 when, following a number of tests, the specialists finally determined what her problem was. She was prescribed appropriate medications and sent to a panic therapy group, which she found to be helpful. In his August 8, 1997 report, Dr. Rajendra noted that while Ms. Gogos was still suffering from symptoms of depressive illness, "her panic attacks seemed to be much less." Further, Dr. Rajendra did not insist on further treatment concerning her emotional and psychological state, but indicated that "if the insurance company allows her then I would go ahead and refer her to a psychologist...for further assessment as well as treatment." As noted earlier, while raising the possibility of further pain treatment, Dr. Rajendra did not address the issue of whether Ms. Gogos was disabled from performing her pre-accident job. In her 1998 report, Dr. Sayani only stated that Ms. Gogos needed three to four vocational counselling sessions in order to facilitate a return to work and that it was important that she return as soon as possible. Dr. Sayani's reference to "vocational counselling" does not appear to refer to any form of physical or psychological treatment as a prelude to Ms. Gogos resuming her prior employment. Dr. Hirscheimer’s cryptic handwritten notes state that Ms. Gogos is disabled from returning to work, but there is no analysis of Ms. Gogos' medical condition, the course of her treatment or the manner in which she is incapable of resuming her job. Dr. Hirscheimer also makes no reference to Ms. Gogos emotional/psychological condition in the context of her ability or inability to work.
In my view, the medical evidence before me simply does not support Ms. Gogos contention that she remained substantially disabled from performing the essential tasks of her pre-accident job beyond August 8, 1997. While the 1997 medical-rehabilitation DAC acknowledged Ms. Gogos panic attacks and the need for psychiatric treatment, this was before her condition was brought under control by Drs. Sayani and Rajendra. In addition, the bulk of medical evidence, including that of her family physician, suggested that Ms. Gogos should attempt to return to work. Despite this, however, Ms. Gogos has made no attempt to return to work, maintaining simply that she was not ready to return and that she would know when she was ready. Ms. Gogos did testify that she attempted to do some hairstyling for her family following the accident, but was unable to complete or properly perform those tasks. She also testified that she had mentioned this to the various physicians she saw. However, none of the specialists indicated this in their reports or that it supported Ms. Gogos' contention of being disabled. It is also unclear when (during the various stages of her post-accident condition) Ms. Gogos attempted to do her family's hairstyling or what it involved and, therefore, whether it reflected a substantial inability to return to work. As discussed earlier, I am also concerned that Ms. Gogos regards herself as not having improved appreciably since the accident and as simply not being ready to return to productive work. I do not consider the simple statement that she attempted to do her family's hairstyling as supporting her claim of a substantial disability.
I accept that Ms. Gogos continues to suffer from emotional difficulties for which she is still seeing Dr. Rajendra. However, in light of the totality of medical evidence, I am not satisfied that Ms. Gogos' condition following the acute phase of her panic attacks continued to substantially disable her from performing her duties as a hairstyling instructor. It may be that Ms. Gogos' lingering emotional and cognitive difficulties would interfere to a certain extent with her job. However, other than the period in which she was experiencing serious and frequent emotional breakdowns, I find that Ms. Gogos has simply not provided enough evidence to discharge the onus on her of demonstrating that her current problems substantially disable her from returning to work.
I further find that Ms. Gogos' physical condition remained substantially the same as before the time her emotional difficulties began. I have already found that she was not disabled during that earlier period. Similarly, while Ms. Gogos' emotional state may have changed and while she may have experienced lingering physical pain, I am not satisfied that this substantially disabled her from performing her pre-accident duties. There is no evidence that her physical condition changed or deteriorated to the point that the earlier opinions concerning her work ability were no longer valid. While the medical-rehabilitation DAC did not have as accurate a picture of Ms. Gogos' pre-accident job as did some of the earlier specialists, they were consistent in finding significant physical ability on Ms. Gogos' part despite continuing subjective complaints of pain.
Finally, the Insurer questioned Ms. Gogos' overall credibility in relation to her claim of ongoing disability. In this regard, I have already commented on Ms. Gogos' view of her lack of progress and her inability to return to work. However, I also find her evidence regarding her hours of work to be of significance. Based on her testimony in direct examination, Ms. Gogos would have worked (on average) a minimum of 45 hours a week, assuming half hour lunch breaks. In cross-examination, Ms. Gogos, testified that she, in fact, worked at least 48 hours a week. However, documents from her pre-accident employer demonstrate that she worked at most 35 hours a week and often only approximately 25 hours a week. At one point, Ms. Gogos was working as little as 15 to 20 hours per week. While these facts do not alter my opinion concerning her disability during the acute phase of her panic attacks, I find them significant in relation to her contention that she has remained disabled from returning to her job. In my view, Ms. Gogos worked significantly fewer hours than she claimed. In conjunction with her improved physical and emotional condition, I do not accept her evidence (even if honestly held) that she was simply not ready to return to work under these conditions. In the absence of medical evidence suggesting otherwise, I find that Ms. Gogos was physically and emotionally capable of resuming her pre-accident job, employment which involved a significantly more manageable workload than portrayed by Ms. Gogos.
iv) Prescriptions
Ms. Gogos submitted receipts for a variety of medications, maintaining that they were required as a result of the motor vehicle accident. The Insurer submitted that the prescriptions were not related to the motor vehicle accident. Counsel for the Insurer also advised that Ms. Gogos had been asked for a doctor's certificate indicating that the prescriptions were reasonable and necessary, but that no response had been received. No evidence of such a request was submitted.
Virtually all of the receipts submitted were for medications prescribed by Ms. Gogos' psychiatrist, Dr. Rajendra. I find that these prescriptions related to the treatment of Ms. Gogos' emotional and psychological condition and were, therefore, both related to the motor vehicle accident and reasonable and necessary. Dr. Sayani specifically identified certain prescriptions as not related to the accident, namely, minocin and antivert. Ms. Gogos also submitted a receipt for prescriptions from the Golden Mile Supercentre, but the names of the prescriptions are not identified. I find that Ms. Gogos is not entitled to these items.
Ms. Gogos is, therefore, entitled to be reimbursed for all of the prescriptions except those for minocin, antivert and the ones purchased at Golden Mile Supercentre.
Expenses:
Ms. Gogos was partially successful in this arbitration. I found that the case was brought in good faith and raised legitimate issues for determination. In the circumstances, I exercise my discretion to award Ms. Gogos her reasonable expenses of the arbitration. The parties may apply for an assessment, should they be unable to agree on the amounts owing.
Order:
The Insurer shall pay Ms. Gogos income replacement benefits from December 26, 1996 to August 8, 1997, with appropriate interest.
The Insurer shall pay Ms. Gogos supplementary medical benefits for all of the prescriptions submitted except minocin, antivert and the prescriptions purchased at the Golden Mile Supercentre, with appropriate interest.
The Insurer shall pay Ms. Gogos her reasonable expenses of the arbitration.
December 29, 1998
Eban Bayefsky
Arbitrator
Date
APPENDIX
Present at the Hearing:
Applicant:
Sophia Gogos
Ms. Gogos Representative:
Peter S. Carlisi
Barrister and Solicitor
General Accident’s Representative:
Mark H. Fonseca
Barrister and Solicitor
Witnesses:
Ms. Gogos
Exhibits:
The parties filed five exhibits, two consisting of document briefs.
1 The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2 Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.