Neutral Citation: 1998 ONFSCDRS 11

FSCO A96-000785

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

PATRICIA HARRISON

Applicant

and

WELLINGTON INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Patricia Harrison, was injured in a motor vehicle accident on May 31, 1993. She applied for and received statutory accident benefits from Wellington Insurance Company ("Wellington"), payable under Ontario Regulation 672.¹ Wellington terminated weekly income benefits on December 5, 1995 and medical and rehabilitation benefits on February 26, 1996. The parties were unable to resolve their disputes through mediation, and Ms. Harrison 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 after December 5, 1995 under subsections 12(1) and 12(5)(b) of the Schedule? There was no dispute about the benefit rate of $600 per week.

2. Is the Applicant entitled to medical and rehabilitation benefits after February 26, 1996 under section 6 of the Schedule, including chiropractic treatment and related travel expenses, a pain management programme, and expenses relating to providing the Applicant with ergonomic office furniture and equipment for a home office?

3. Is the Insurer entitled to repayment of chiropractic expenses paid after February 26, 1996?

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

Ms. Harrison also claims interest on any amounts owing and her expenses incurred in the hearing.

Result:

1. The Applicant is entitled to weekly income benefits from December 5, 1995 and ongoing, less 80 percent of her net post-accident income, plus interest as provided under section 24 of the Schedule. The benefit payable from April to September 1997 is $13,179.75 plus interest.

2. The Applicant is entitled to the following medical and rehabilitation benefits:

a. anti-depressant medication;

b. a hydrotherapy programme that includes a strengthening component;

c. a pain management programme;

d. a conditioning or work hardening programme that includes aerobic, strength and endurance components;

e. a computer system;

f. a computer work station;

g. word processing and accounting software;

h. a computer skills refresher course;

i. ergonomic workstation modifications and equipment as follows:

(i) an adjustable ergonomic chair with adjustable armrests;

(ii) an adjustable keyboard table;

(iii) an adjustable mouse table;

(iv) an adjustable footrest;

(v) a document holder than can be placed between the screen and keyboard;

j. the assistance of an ergonomist or occupational therapist, agreed upon by the parties, to help the Applicant choose and set up her workstation;

k. the assistance of a vocational rehabilitation consultant, agreed upon by the parties, to help the Applicant establish her home-based business; and

l. the assistance of an occupational therapist to assist the Applicant to return to work in accordance with the guidelines for a graduated schedule set out in the decision.

The Applicant is not entitled to chiropractic or other passive therapies or related travel expenses after February 26, 1996.

Given the need to return the Applicant to work without further dispute and delay, I remain seized of these issues, and may be spoken to in case of any disagreement about the amounts and details of the benefits payable.

Interest is payable on these benefits under section 24 of the Schedule.

1. The Insurer is not entitled to repayment of chiropractic benefits overpaid.

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

3. The Applicant is entitled to her arbitration expenses pursuant to the Expenses Schedule, set out in Regulation 664. I may be spoken to in case of any disagreement about the amount payable.

Hearing:

The hearing was held in Hamilton, Ontario, on October 7, 8 and 9, November 28, and December 15, 1997 before me, Nancy Makepeace, Arbitrator. The hearing resumed by telephone for closing submissions on January 22, 1998. Written submissions and authorities were received from the Insurer on January 22, 1998 in advance of the final day of hearing, and on January 28, 1998 (Applicant) and February 16, 1998 (Insurer).

Details about the hearing and evidence are set out in an Appendix to the decision.

Evidence and Findings:

Background

At the time of the accident, the Applicant, Patricia Harrison, was 39 years old, single, and the mother of a nine-year-old girl. She has since established another spousal relationship. The Applicant has worked in the accounting or financial management area since graduating from high school in 1972, and she became a Certified Management Accountant ("CMA") in 1990. Her most recent employment before the accident was as Comptroller for the McMaster Students Union ("MSU"). She was laid off when the position was eliminated on February 19, 1993, about three and a half months before the accident. She received positive performance appraisals and references from the MSU.²

On May 31, 1993, the Applicant was driving at the speed limit on the Queen Elizabeth Way when she was rear-ended by a van whose driver had fallen asleep at the wheel. She and her two passengers were extricated from the vehicle by the Etobicoke fire department.³ Photographs of the damaged Honda Civic show serious damage to the rear end. The entire body of the vehicle is crumpled and pushed forward, and the front driver's seat is broken.⁴ I accept that this accident involved moderate physical forces.

The Applicant was taken to Queensway Hospital, where she was discharged after assessment. The next day, she saw her family doctor, Dr. M. Syty-Golda, complaining that she ached all over, especially in her neck, extending across her shoulders, and her back.

Despite prolonged treatment, including physiotherapy, chiropractic treatment, acupuncture, psychological counselling, massage and Shiatsu massage, the Applicant's complaints have changed little since the accident. In declining order of severity, they are: constant neck, shoulder and interscapular pain which is aggravated by prolonged neck flexion and raising her arms above shoulder level; frequent and severe headaches associated with neck pain and less frequently with right temporomandibular pain; intermittent tingling and numbness in her arms and hands, especially on the right, which sometimes causes her to drop things and is also associated with elevating her arms; low back pain, which is aggravated by prolonged sitting, standing or walking, and is associated with intermittent right hip, groin, leg and foot pain; and interrupted and non-restorative sleep because of pain. Anxiety and depression have also been noted.

The Applicant claims that because of her injuries, she is unable to tolerate prolonged sitting or prolonged neck flexion, and that these impairments render her unable to work as a comptroller or in any comparable occupation on a sustained, competitive, full-time basis. Other accident-related problems affecting her productivity are pain, fatigue (related to her sleep problems) and loss of self-confidence. The Applicant feels that, at best, she could now begin a gradual return to work on a self-employment basis from a home office.

The Insurer terminated weekly income benefits on December 5, 1995, relying on the reports of Dr. R. Soric, a physical medicine and rehabilitation specialist, and Dr. D. Costa, a psychiatrist, who concluded, respectively, that the Applicant is not physically or psychologically disabled from returning to her pre-accident occupation. The Insurer submits that the Applicant could have returned to work by late 1994, and that her failure to do so is a result of her lack of motivation, her long absence from the work force, and a poor job market. The Insurer also submits that the Applicant was still suffering the effects of two prior incidents at the time of this accident.

The Applicant's Educational and Employment Background

In 1972, the Applicant graduated from Grade 12 of a business and commercial program. In the 20 years between her graduation and the accident, she has been employed in increasingly responsible jobs in the accounting or financial management area. She held her pre-accident job of MSU Comptroller from April 16, 1990 to February 19, 1993.

Between about 1980 and 1990, the Applicant completed the 18 university courses required to become a Certified Management Accountant ("CMA"). She did this on a part-time basis while continuing her full-time employment and looking after her daughter. She became a CMA in about 1990.

The Applicant's last day of work was about three and a half months before the accident. The Insurer submitted that because the Applicant was not employed at the time of the accident, her essential tasks for the purpose of assessing disability are broader than those of a comptroller. I reject this submission. The Applicant is entitled to weekly income benefits on the basis of paragraph 12(3) of the Schedule, which is as follows:

A person who was unemployed and who was not self-employed at the time of the accident is qualified to receive a weekly benefit under subsection (1) if he or she was employed or self-employed for any 180 days in the twelve-month period before the accident, and if he or she as a result of and within two years of the accident has suffered a substantial inability to perform the essential tasks of the occupation or employment in which he or she spent the most time during the twelve-month period before the accident. (emphasis added)

The Applicant had only one "occupation or employment" in the twelve-month period before the accident, and she worked at that job for well over 180 days during that year. I find that "the employment in which the insured spent the most time in the twelve-month period before the accident" was her job as MSU Comptroller.

The Insurer did not dispute that the Applicant was responsible for managing the financial affairs of an organization with a budget of $2-3 million dollars which provides services to over 12,000 students.⁵ The Applicant testified that she spent about a third of her time at her desk, another third meeting with various people, and a third of the time "putting out fires." Her duties often required her to walk across campus. There was no serious dispute about the physical demands of the job. I find that the key physical demands of the job pertinent to the Applicant's complaints are prolonged sitting and neck flexion. Other physical demands included walking, and lifting and carrying accounting records. The job also required cognitive and communication abilities. The Applicant was required to work 37.5 hours per week, but generally worked longer hours.

After 156 weeks, the Schedule mandates a broader enquiry into an insured person's job options. However, in this case, there was no dispute that the Applicant's education, training and experience - as well as her aptitudes and interests - fit her for work in the financial management or accounting area. This need not be limited to job titles of "Comptroller."

The real issue in this case is whether the Applicant can return to full-time or comparable employment or self-employment in any of the alternative occupations. She says that at best, she could now begin a graduated return to work, starting with two or three hours a day, and hoping to work up to full-time. She did not believe, at the time of the hearing, that she could sustain a responsible, competitive level of work on a full-time or comparable basis. The Insurer says she can, and could have done so by 1994.

The Applicant's Pre-accident Health

On November 21, 1987, the Applicant broke her left clavicle in a motor vehicle accident. She had an open reduction and the hardware was surgically removed in December 1987. She also suffered a whiplash injury in this accident. She was on medical leave from her job at a Toronto hospital for about seven months, after which time she returned to work.

When the Applicant's symptoms worsened in late 1991, Dr. Syty-Golda referred her to Dr. Chong, a physical medicine and rehabilitation specialist, who is Director of the Centre for Human Performance and Health Promotion at the Sir William Osler Health Institute, a clinic associated with the Chedoke-McMaster Hospitals in Hamilton. Dr. Chong saw the Applicant on March 6, 1992. He described the accident as "quite severe trauma." On examination, he noted "exquisite trigger points in the upper fibres of the trapezius, sternocleidomastoids and extremely tight scalenes. Obviously this relates to her previous trauma [the November 21, 1987 accident] but also is aggravated by her stress factors." Dr. Chong also reported that the Applicant complained of "occasional numbness down the left arm," which he felt was related to her scalenes. He also said she had "some major issues related to posture and support of her cervical spine and head."⁶

By this time, the Applicant had left Toronto, moved back to Hamilton, and begun working at the MSU. In her testimony, the Applicant denied that she had been considering looking for another job or setting herself up in self-employment at any time before the 1993 accident. She tended to minimize her work stresses, and testified that when she saw Dr. Chong in March 1992, she was only having difficulties with the Treasurer then in office. However, Dr. Michael Chu, who saw her on referral from Dr. Chong in June 1992, described the Applicant as "extremely stressed out at work." He reported that the Applicant complained about lack of job security and tensions between the elected board and the staff: "She has considered quitting."⁷

I find that the Applicant was experiencing typical problems for a professional employee reporting to an elected non-professional board of directors. Based on the testimony of the Applicant and her sister, I have the impression that the Applicant's favourite job was the hospital job she had left in order to move back to Hamilton. In that smaller market, the Applicant had not found equally responsible positions. I find that the Applicant was dissatisfied with the MSU job.

However, the Applicant accepted the MSU board's offer to extend her term of employment from November 24, 1992, when she received her notice, to February 19, 1993, and there is no suggestion that the MSU job remained available to her after that date. I do not think any misgivings she may have felt about this job contributed to her failure to return to the accounting or financial management occupations in which she had worked for 20 years.

Dr. Chong referred the Applicant to Dr. Walter F. Kean, a rheumatologist, who examined her on December 16, 1991 and September 26, 1992.⁸ Dr. Kean reported that the Applicant was complaining of neck pain radiating to her head and shoulder girdle, and severe daily cervicogenic headaches. In December 1991, the Applicant was also complaining of pain over her left lateral clavicle and pain in both upper arms, but these complaints were not mentioned in the second report. Dr. Kean gave her an anaesthetic injection bilaterally at C1 in December 1991, and at C1 and C3 bilaterally in September 1992.

Dr. Chong also sent the Applicant for x-rays of her neck, shoulders and clavicle, which were negative except for the healed clavicle fracture.⁹ He referred her to the clinic's "Body Basics" programme of movement and posture education with Mari Naumovski, and to Friedel Storck for physiotherapy. The Applicant attended three sessions of physiotherapy in April 1992, one in May, three in July, four in each of October and November, two in December of 1992, one in January 1993, and one on February 1, 1993.¹⁰ This supports the Applicant’s testimony that her symptoms were worst in the fall of 1992 and began to resolve in early 1993.

On Tuesday, February 2, 1993, the Applicant fell on ice while walking from her car to the office in the morning. The MSU prepared a Workers' Compensation Board accident report indicating that she reported to McMaster Hospital Emergency, where she was seen by a Dr. Hancock, who diagnosed a soft tissue injury to her left shoulder.¹¹

Mr. Storck’s note for February 8, six days after the fall, says "fell on ice, hurt her left shoulder, can't move her shoulder, very painful."¹² By the next visit, March 4, 1993, Mr. Storck noted "shoulder feels better," though on March 9, the note says that Applicant had a very tight neck and scapula. The notes for the remaining 13 physiotherapy sessions before the May 31, 1993 accident indicate ongoing improvement. The Applicant attended for physiotherapy three times in May, the last session being on May 20, 1993, only 11 days before the accident.

The Applicant saw her family doctor twice between February 2, 1993 and the accident, but her complaints on these occasions were not related to her shoulder injury. There is no evidence that the Applicant lost any time as a result of this incident. A memo from her employer three days later (Friday) and another memo the following Monday confirmed the extension of the Applicant's employment for another two weeks, without mentioning any difficulties relating to the injury.¹³ I find that this injury was probably a minor one which did not lead to significant ongoing problems. I also note that the Applicant's shoulder difficulties after the 1993 accident have been mainly on her right side.

Aside from the evidence of pre-accident headaches and back, neck and shoulder pain, the Applicant's medical records indicate a number of unrelated medical problems and relatively frequent attendances in emergency. While none of these problems stands out as being particularly significant on its own, I find that the Applicant's health was a concern to her, particularly in 1991 and 1992.

Moreover, Dr. Chong admitted that the Applicant would have been a candidate for recurrent problems resulting from her 1987 accident, even if she had not had the 1993 accident. I accept that the Applicant's prior musculoskeletal injuries, especially those suffered in the 1987 motor vehicle accident, left her with residual problems which had not entirely resolved at the time of the May 31, 1993 accident, and that she was more vulnerable to injury and a prolonged period of disability as a result.

The Insurer submitted that the Applicant's prolonged treatment and eventual recovery after the 1987 accident shows that she has the capacity to rehabilitate herself and could have returned to work after the 1993 accident if she had wanted to. I find that the Applicant's medical records show that the Applicant is prone to need extensive rehabilitation to recover from soft tissue injuries that might cause less impairment to other people. Whether this vulnerability is attributable to an underlying hypermobility of her joints, as Dr. Quartly believes, or some other physical or psychological factor, is a question I need not determine, since my concern is with questions of disability and function rather than diagnosis.

It is trite law that the insurer "takes the insured as it finds her." The insured person must prove that the accident was a "significant" or "material" factor in her disability but need not prove that it was the only factor. On this point, the key evidence was a memo prepared by the MSU's current Business Manager in December 1995 stating that the Applicant’s employment file indicates that she was "not absent for any time period for which she suffered a loss in pay, vacation pay or other benefits."¹⁴ This supports the Applicant’s evidence that she suffered no disability during her three years at the MSU.

Is the Applicant disabled from returning to her pre-accident job or another suitable occupation?

It is common ground in this case that objective tests, including x-rays, CT scans, bone scans, an MRI and an EMG, have shown no significant results which would explain the Applicant's reported physical symptoms. The dispute between the Applicant’s treating doctors and the Insurer’s experts is about the appropriate treatment of chronic soft tissue pain and whether the Applicant’s physical and psychological symptoms are disabling. As this is a rather typical chronic pain case, I adopt the approach set out in Quattrocchi and State Farm Mutual Automobile Insurance Company (September 29, 1997), OIC A-006854.

The Applicant's doctors

Within a week or two of the accident, Dr. Syty-Golda sent the Applicant back to Dr. Chong, who found that she had myofascial pain through her cervical and thoracic spine and her shoulder/scapular girdle. On examination, he noted "tremendous trigger point [tenderness] and spasm" in the muscles in these areas. He felt that these problems were the cause of her headaches, as well as the pain and numbness in her arms, and he suspected entrapment of the brachial plexus. He also noted tenderness in the Applicant's right hip girdle and he suspected L5 nerve root irritation. However, Dr. Chong conceded that the x-rays, CT scans and bone scans of the Applicant’s spine showed only clinically insignificant changes. In addition to her physical complaints, Dr. Chong initially found the Applicant to be "very depressed" and "suffering from a severe post-traumatic anxiety stress disorder."

At the hearing, Dr. Chong's diagnosis was "chronic myofascial pain syndrome." He admitted that the Applicant was not "clinically depressed" the last time he saw her in 1994, though she was "anxious and unhappy."

Between 1993 and early 1996, the Applicant attended Dr. Chong’s clinic for a stretching and strengthening programme, stress counselling, pain blocks, physiotherapy, massage, Shiatsu massage, and acupuncture. She also began chiropractic treatment with Dr. Millett in October 1993 with Dr. Chong’s approval. These modalities did offer her temporary relief, but affected little long-term change in her symptoms.

It was Dr. Chong’s opinion that the Applicant remained disabled from working as a comptroller or in any other suitable occupation. He testified that she was statistically unlikely to return to full-time work because of her long absence from the workforce and the nature of her soft tissue injuries. However, he felt that guided exercise and psychological support would increase the likelihood of success, and he conceded on cross-examination that overmedication, depression and loss of motivation - factors which prolong disability in many cases - do not apply in this case. He testified that he would recommend a gradual return to work, starting at four hours a day for two or three days a week, and allowing five minutes of recovery time for every 10 minutes of work, to be reassessed in a month. He agreed that working at home on a self-employment basis would increase the Applicant’s chances of successfully returning to work, as employers "usually," in his experience, object to the frequent breaks such patients need. However, Dr. Chong reiterated that the Applicant would remain vulnerable to recurrences, and he was not confident that she would ever return to full-time comparable work.

In the fall of 1994, Dr. Chong transferred the Applicant's care to Dr. F. Smith, an orthopaedic surgeon at the clinic. Dr. Smith diagnosed the Applicant’s right hip, back and groin problems as meralgia paresthetica, and recommended treating the problem with anaesthetic and steroid injections.¹⁵ When the injections failed to resolve the Applicant's symptoms, Dr. Smith referred her to Dr. Adrian Upton, a neurologist, who asked Dr. Caroline Quartly to do an evoked potentials assessment. Dr. Quartly is a physical medicine and rehabilitation specialist with a subspecialty in electromyography ("EMG"). The Applicant’s EMG did not show meralgia paresthetica,¹⁶ though, at the hearing, Dr. Quartly stated that a negative EMG does not rule out the condition. Alternatively, she felt that the Applicant’s groin, hip and leg pain was probably referred from ligamentous injuries to the sacroiliac and lumbosacral joints to which the Applicant was vulnerable because of an underlying hypermobility of these joints.

By the end of 1995, Dr. Smith reported that the Applicant’s symptoms were worse and she was totally disabled, having shown negligible improvement. Dr. Smith referred the Applicant to Dr. Watson Buchanan with regard to the possibility of fibromyalgia. Dr. Buchanan did not diagnose fibromyalgia though he found many tender points.¹⁷

The Applicant has experienced little improvement since benefits were terminated in December 1995. Dr. Smith reported that she continued to be disabled from any work, especially office work, through 1996, though her meralgia paresthetica-type symptoms had improved by October 1996.

Dr. Quartly took over the Applicant's care from Dr. Smith in early 1997. She diagnosed musculoligamentous strain of the cervical, thoracic and lumbosascral spine and sacroiliac joint; underlying mild joint laxity; deconditioning; TMJ syndrome; right leg paresthesias consistent with meralgia paresthetica, which were resolved by injection; non-restorative sleep; and postural indiscretion. She recommended that the Applicant participate in Dr. Ramona Carbotte's "mindfulness meditation" programme, a stress management programme, a hydrotherapy strengthening programme, and a pain management programme offered by Dr. Woodruff.

At the hearing in December 1997, Dr. Quartly believed that the Applicant continued to be disabled from full-time work, but should try to return to some form of work. She endorsed, although cautiously, the Applicant’s proposal to work part-time on a self-employment basis from her home. She was more cautious than Dr. Chong about a return to work schedule, and would start the Applicant at less than four hours a week.

Dr. Quartly felt that sustained positions of her neck and arms should be avoided and would likely exacerbate her symptoms. She agreed that the Applicant needs an ergonomic workspace. When Mr. Smye asked her whether the Applicant should be treated by Drs. Carbotte and Woodruff before attempting to return to work, Dr. Quartly stated bluntly that the Applicant "won’t get back to work without these programmes." Dr. Quartly felt these programmes accomplish the same goal as "work hardening" programmes.

The Insurer’s doctors

The Insurer terminated the Applicant’s benefits on December 5, 1995, on the basis of Insurer Medical Examinations by Dr. R. Soric, a physical medicine and rehabilitation specialist, and Dr. D. Costa, a psychiatrist.

Dr. Soric examined the Applicant on July 26, 1995 and concluded that she could perform her essential tasks as an accountant (or as an accounting clerk or bookkeeper or similar occupation).¹⁸ I give this opinion little weight, for the following reasons. First, the Insurer did not challenge the Applicant’s report, which she reduced to writing the same day, that Dr. Soric saw her for about half an hour, only five minutes of which consisted of a physical examination.¹⁹In contrast, Dr. Quartly testified that she examined the Applicant for about an hour and interviewed her for an hour and a half. I find that the very brief orthopaedic, neurological and range of movement examination conducted by Dr. Soric was not adequate to establish whether the Applicant was able to perform her essential tasks on a sustained and productive basis.

Secondly, Dr. Soric found that the Applicant had "dramatically reduced active range of movement in the cervical and lumbar region" and a "significant degree of muscle spasm throughout," findings which would seem to indicate some degree of impairment. She diagnosed chronic pain syndrome and temporomandibular joint dysfunction. She concluded, though, that her findings reflected a "significant degree of pain behaviour"²⁰ and the Applicant's being "extremely tense." The report does not explain why Dr. Soric rejected the conclusion reached by the Applicant’s treating physicians that her symptoms were related to her soft tissue injuries. I do not accept Dr. Soric's report that the Applicant presents with "whole body pain" because the Applicant’s treating physicians have all recorded her specific complaints related to specific activities.

Finally, Dr. Soric's conclusion that the Applicant is able to return to her pre-accident work is based in part on her opinion that "[a]lthough Mrs. Harrison [sic] may complain of more pain, I do not feel that by increasing her level of function she would adversely affect her condition in any way." As Director's Delegate Draper stated in Wiseman and Coachman,²¹ this is the wrong question. In determining whether pain is disabling, the right question is: "how much pain is too much?"

Dr. Soric recommended terminating the Applicant’s physiotherapy because prolonged treatment had produced only negligible improvement. However, following mediation, the Applicant’s rehabilitation benefits were extended to February 26, 1996 in order to allow her to complete her programme at the Healing Link Rehabilitation Clinic.

The Insurer also had the Applicant assessed by Dr. Daniel Costa, a psychiatrist.²² Dr. Costa found that the Applicant was subject to a "cumulation of non-accident related psychosocial stressors" at the time of the accident: she was a single mother and homeowner, had been laid off from the MSU and had had several unrelated medical problems, including a benign biopsy in January 1993. I agree with Dr. Costa that Ms. Harrison's depressed affect as early as three weeks after the accident (when she saw Dr. Chong on June 18, 1993) suggests that pre-accident stressors were at work. However, given the Applicant’s strong work history, I am not persuaded they would have prevented her from finding another job if not for the accident.

I accept Dr. Costa's opinion that the Applicant does not have Post-Traumatic Stress Disorder, given that she does not re-experience the trauma and claims no driving phobia. I also accept his finding that she is not cognitively impaired, which is consistent with the vocational testing done by Graham Pett. However, I think it likely that the Applicant suffers some degree of depression and anxiety resulting from the accident, as indicated by the Beck Inventories administered by Dr. Costa.

I reject Dr. Costa’s report in all other respects because he appears to have focussed mainly on identifying discrepancies in the Applicant’s claim. I am especially troubled by his testing the Applicant’s sensitivity to touch in her right cheek: he is not a neurologist and was not asked to perform a neurological assessment. He then drew adverse conclusions about the Applicant’s credibility from her reluctance to submit to the test. I find that her reluctance was justified.

Dr. Costa also relied on a 1995 surveillance videotape, especially a segment which purportedly showed the Applicant gardening for over an hour on June 1, 1995. I excluded this portion of the Insurer’s videotape evidence because the Applicant questioned whether she was the person observed, and the Insurer was unable to make the investigator who made the videotape available for cross-examination. It was partly on the basis of this videotape that Dr. Costa rejected the results of the Beck Inventories he administered, which showed the Applicant to be mildly depressed and moderately anxious. The report does not say how Dr. Costa purported to draw conclusions about the Applicant’s mental state from this videotape. Dr. Costa also commented that the Applicant did not come across as "significantly anxious" or "significantly depressed" during the interview. I do not find this comment inconsistent with inventories indicating "mild" depression and "moderate" anxiety and I accept these test results.

Dr. Costa also relied on videotapes which, he said "show her walking for significant periods of time with no limping whatsoever," in contrast to her claim to have a limp on her right side. Dr. Costa was not asked to assess the Applicant’s physical condition. In any event, the videotape evidence before me shows the Applicant walking no further than the distance between her parked car and a store or clinic. I observed that she has a stiff gait, shows little mobility in her lumbar and sacroiliac area, and sometimes favours her right leg.

At the hearing, the Insurer also relied on several earlier medical reports. The Applicant was assessed by Dr. J. Stubbs, an orthopaedic specialist, in September 1993. He diagnosed soft tissue injures to the Applicant’s cervical spine, both shoulder joints, the lateral cervical muscles and the dorsolumbar region, as well as frontal and suboccipital headaches. He felt she would be fit to return to her pre-accident work after another two months of physical treatment. He also recommended that she see a psychiatrist. When Dr. Stubbs saw the Applicant again in March 1994, he concluded that her "relatively minor" soft tissue injuries would not prevent her from engaging in a job search; he did not consider her ability to work as a comptroller. The reports provide no basis for a conclusion that the Applicant’s stress level or "pain threshold" was the main issue. I have the impression that Dr. Stubbs based his conclusion on a fairly limited orthopaedic examination. I place little weight on his reports.²³

The Applicant was also assessed by Dr. Ali Ghouse, a physical medicine and rehabilitation specialist, on August 25, 1994.²⁴ He diagnosed "hyperligamentous cervical strain," "myofascial muscle tension headaches," "fibroligamentous lumbar strain," "right groin iliopsoas strain," and "paresthesia of the right arm related [to] dynamic thoracic outlet syndrome (scalene muscle spasm)." He disputed Dr. Chong's finding that the Applicant showed 2 cm. wasting of her right thigh; Dr. Ghouse found no wasting. I accept Dr. Ghouse's finding on this point because Dr. Chong is the only expert who noted any muscle atrophy.

Dr. Ghouse expected the Applicant to continue to improve over a prolonged period leading eventually to a full recovery. He recommended that the Applicant have anti-depressant medication, and that she continue her exercise program aimed at stretching and endurance. He recommended discontinuing massage therapy, though he seemed to feel that a physiotherapist might usefully use massage. He recommended discontinuing chiropractic and Shiatsu massage therapy. He suggested that after a further six weeks of exercise, the Applicant participate in a "work hardening and aggressive aerobic fitness exercise program." He predicted that she should be able to return to her work and her activities of daily living in about three months.

Though I found Dr. Ghouse’s report to be detailed, impartial and consistent with the findings in the reports of the Applicant’s treating doctors, I find that his prognosis of recovery in three months was overly optimistic given his own observation that the Applicant had had a prolonged recovery from her previous accident, and given her reports to him of an ongoing level of pain, tenderness and restricted movement.

In addition to the Insurer Medical Examinations, the Insurer relied on the report of Dr. M. Kronby, a neurologist who examined the Applicant in January 1994 on referral from Dr. Chong. He noted a "discrepancy between her complaints and her ongoing status" after noting minimal findings on examination.²⁵ Dr. Kronby found the Applicant "improved somewhat" when he saw her in August, though she continued to report constant neck and shoulder pain of about 3 or 4 on a scale of 10, exacerbated to 8-9/10 by vacuuming or washing the floor, numbness in her hands if she raised them above shoulder level, low back pain at about 5-6/10 with prolonged walking or physiotherapy exercise, and muscular tension headaches lasting up to four days, for which she took Toradol.²⁶ The absence of objective signs of injury which would explain the Applicant's symptoms does not rule out disability. Dr. Kronby did not question the legitimacy of her complaints, and recommended further treatment including psychological counselling. The discrepancy between the Applicant’s complaints and injuries is not determinative in this case.

Despite some disparity in their findings on physical examination of the Applicant, I find that the Applicant’s treating doctors and the Insurer’s medical experts agree that the Applicant has no orthopaedic or neurological injury, and that she suffered soft tissue strains to her neck, shoulders and low back. They also agree that the Applicant's complaints of pain and disability are out of keeping with the usual course of recovery from these injuries. Except for Dr. Costa, none of them doubts that the Applicant’s complaints are genuine.

I was especially impressed by Dr. Quartly. I found her to be unbiased and thoughtful in her testimony, and she gave a coherent explanation for the Applicant’s symptoms and for her own conclusions based on her examination of the Applicant. Dr. Quartly testified that the Applicant's complaints and her findings on examination of the Applicant presented a coherent picture of impairment, which she accepted.

The rehabilitation evidence

In July 1994, the Insurer retained Gail Forbes of Sibley & Associates to act as Rehabilitation Consultant on the file. Ms. Forbes reports corroborate the Applicant’s testimony about their deteriorating relations. There were disputes about an amendment to an Activities of Daily Living checklist; delayed provision of certain assistive devices; Dr. Chong's refusal to meet personally with Ms. Forbes; the Applicant’s insistence that Ms. Forbes communicate with her in writing; a delay in scheduling a case conference meeting because of the Applicant’s insistence that her lawyer attend; Ms. Forbes feeling that Ms. Flock had adopted an adversarial approach; and a disagreement as to whether Dr. Ghouse had recommended that the Applicant attend a work hardening programme. Sibley closed its file in February 1995 because of these problems. The Insurer offered to appoint another rehabilitation caseworker, but the Applicant refused.

These problems are, unfortunately, very common in a system where rehabilitation assessments and services must be initiated by one or the other of two parties who are adverse in financial interest. Arbitrators have repeatedly directed insureds and insurers to adopt a non-adversarial, co-operative approach to rehabilitation. I am troubled that the rehabilitation focus of the statutory accident benefit scheme remains a secondary issue for insureds and insurers eight years after Bill 68 was proclaimed. I find that by mid-1994, both parties in this case adopted an adversarial approach to their relationship which was counterproductive from a rehabilitation point of view.

In January 1997, the Applicant’s counsel retained Terry Pearce, a Rehabilitation Consultant, to assess and make recommendations for the Applicant’s vocational rehabilitation.²⁷ It was apparently during his January 14 interview with the Applicant that she first expressed interest in working "at a paced rate, possibly from her home." Mr. Pearce endorsed Dr. Quartly's recommendation that the Applicant have a functional assessment at Chedoke-McMaster, and begin a pain management programme.

The functional assessment report was completed by Susan Darzins, an Occupational Therapist at Chedoke-McMaster, on March 7, 1997. After reviewing two reports by Dr. Quartly and interviewing the Applicant, Ms. Darzins conducted a 9-day "Situational Assessment" of the Applicant's ability to work in the financial management occupations identified earlier. The NOC classifies these occupations as requiring, predominantly, sitting and upper limb coordination, but also "limited physical strength demands," including handling of loads up to 10 lbs. maximum.

The assessment was scheduled to run from 9 a.m. to 12 p.m. each morning and involved accounting-oriented clerical tasks. The Applicant attended as scheduled for 6 of the 9 days. She missed the fourth day entirely, reportedly because of a headache, and left early (10:15 a.m. and 11.45 a.m.) on the last two days of the assessment, reportedly because of increased pain and headache associated with her activities in the assessment. The Applicant also reported a headache and severe pain on the last day.

Though Ms. Darzins suggested that the Applicant might be unable to perform the more challenging accounting tasks, I am not convinced the Applicant has any cognitive or communications impairment, though low productivity and concentration problems secondary to pain are problems for her. The assessment showed that the main barrier to employment is the Applicant’s productivity, which was found to be "relatively low" overall. The Applicant was observed to display many pain behaviours, and appeared more fatigued and pained as the assessment wore on. She was observed to modify her tasks in order to accommodate her physical limitations - e.g. avoiding crouching by removing all the files from a file drawer, completing her filing task at desk level, then replacing the files; altering her position periodically; selecting a comfortable chair; using a footstool for activities completed while standing.

Ms. Darzins identified a number of barriers to employment: persistent pain symptoms in the neck, shoulders, lower back, and right hip; headaches associated with increased neck pain; pain focus and relatively limited and ineffective pain control strategies; limited endurance, restricting her to approximately two hours of self-paced work activities per day; limited sitting tolerance of about 10 minutes; limited standing and walking tolerance; limited tolerance of static neck flexion (for desk work); poor tolerance for low-level work activities; limited tolerance for sustained or repetitive reaching activities; low self confidence; pain focus and relatively limited and ineffective pain control strategies.

Ms. Darzins concluded that the Applicant "does not appear to be ready to seek any type of employment where she would need to attend work on a regular work schedule, even on a part-time basis." However, she felt the Applicant could work out of her home for a maximum of two hours a day, if an ergonomic workspace were provided. She recommended a pain management programme, and perhaps a work hardening programme afterwards.

At the time of the hearing, the Applicant had completed Dr. Carbotte's "mindfulness meditation" pain management programme, as recommended by Dr. Quartly,²⁸ but had not begun Dr. Woodruff’s pain management programme, also recommended by Dr. Quartly.

Also, in early 1997, the Insurer referred the Applicant’s file to Med-Pro Health Care Management Services for an Employability Assessment. Ms. Julie Mosgrove, Medical/Vocational Services Manager, gave her report on March 24, 1997.²⁹ Ms. Mosgrove criticized the Chedoke-McMaster assessment for not using consistency tools or measuring heart rate to detect submaximal effort. She recommended that the Insurer send the Applicant for a functional capacities evaluation ("FCE") and psychovocational assessment before sending her for a vocational assessment. She recommended that the Insurer not approve Mr. Pearce's recommendations until these assessments were done.

The FCE was done at AssessMed in May 1997, in accordance with Ms. Mosgrove’s recommendation. Dr. Ken Craven, an occupational medicine specialist, concluded that the Applicant had some mild impairment of right hip function, "which could be due to ligamentous laxity or inflammation, or weakness of the right gluteus medius muscle," and likely created some disability. He found no impairment or disability in the Applicant’s neck and shoulders or arms, except for evidence of fatigue on repetitive overhead reaching. He felt that the Applicant limited her movements because of pain or anticipated pain.

Dr. Craven administered consistency tests and measured the Applicant’s heart rate. Although he found that she voluntarily limited her movements, exhibited a great deal of pain behaviour, and was less disabled than she perceived herself to be, Dr. Craven also found that the Applicant's "behaviour throughout the assessment was consistent with her reported symptoms," that she gave maximum voluntary effort and cooperated during the assessment:

Ms. Harrison was cooperative during the Work Tolerance Screening. There was evidence that she applied reasonable exertion. These included blanching of the knuckles during lifting, and shortness of breath and increase in heart rate during more physically demanding tasks. She appeared to have some difficulties with the reaching tasks, especially overhead reaching. She was observed to limp and favor her right lower limb during several tasks, but not when climbing or descending stairs. She approached the tasks cautiously and with deliberation, but did not hesitate to perform them. She used appropriate energy conservation techniques.

Correlation between perceived levels of exertion, actual work loads, and heart rate responses supports the probability that the test results are a realistic estimate of Ms. Harrison’s work capacity.

It was Dr. Craven's opinion that the Applicant was physically capable of returning to accounting-type work, or other sedentary or light work, as long as she avoided frequent overhead reaching or lifting or carrying more than 20 pounds. The Applicant was found to be capable of the reaching requirements of accounting-type work and also of occasional bending, crouching, and kneeling. However, she should have an ergonomic work station, and she might require "minor accommodation, such as assistance with heavy ledgers or boxes of documents, or repacking documents into smaller sized containers." Dr. Craven stated that the Applicant had received "extensive and prolonged physical rehabilitation," but he approved of her participation in the outpatient chronic pain programme. He recommended that she then return to work on a graduated basis, "starting perhaps at three hours per day or a bit less, and increasing to full time over the course of about three months." I found Dr. Craven's report to be impartial and helpful.

In response to Dr. Craven’s report, Ms. Mosgrove expanded the Labour Market Survey provided earlier, and again concluded that suitable jobs existed in the area.³⁰ This was not disputed by the Applicant, and I find that labour market conditions are not a significant barrier for her.

Ms. Mosgrove’s view was that the "graduated, structured, return to work program" Dr. Craven had recommended could be accomplished by a work hardening programme instead of "an actual work trial with an employer in her area of employment interests." I disagree: a work hardening programme can be useful, but is not a substitute for a "real-world" work trial. Ms. Mosgrove’s orientation was clear in her final comments:

This "side step" approach to a return to work will ultimately assist Ms. Harrison. It is important to note that from the outcome of Ms. Harrison's participation in the Work Capacity Evaluation, it was determined that she has a low level of aerobic fitness, therefore, a Work Hardening or Conditioning may assist Ms. Harrison in this specific area.

This return to work program should be carefully monitored to determine Ms. Harrison’s full cooperation and participation, and to also document any symptomatology or barriers that arise during this time.

I find that Ms. Mosgrove, unlike Dr. Craven, was primarily concerned with identifying discrepancies in the Applicant’s claim.³¹ I agree that the Applicant needs a conditioning programme: her poor aerobic fitness and deconditioning has been noted by Dr. Chong and Dr. Quartly as well as Dr. Craven, and she has been out of the work force for five years. However, I am not persuaded that a conditioning programme must take the form of a "work hardening" programme like those offered by the Canadian Back Institute or the Ontario March of Dimes. Further, a work hardening program is a rehabilitative tool, not an investigative tool. I do not think it will serve either party’s interest to force this Applicant to attend a work hardening programme chosen by the Insurer over her objections.

After the Assessmed assessment, the Applicant was referred to Career Probe Inc. for a vocational assessment. Graham Pett, the Senior Evaluator/Facility Director, reported on July 11, 1997. I found Mr. Pett to be a knowledgeable and impartial witness. I accept his conclusion that the Applicant has transferable skills for suitable occupations in the accounting and financial management area, and that "she is a vocationally competent and capable individual."

In assessing the Applicant's "work behaviour," Mr. Pett noted that she complained about neck pain and a headache on the first day and did not make a fairly obvious work modification that might have reduced the necessary amount of neck flexion (i.e., using binders to raise her level of work). Mr. Pett also reported that the Applicant did not attend on the last day, when they would have discussed options for employment. This was unfortunate, because I think Mr. Pett could have helped the Applicant. Mr. Pett nevertheless concluded that the Applicant was co-operative, and "demonstrated effective on-task test behaviours with a conscientious, methodical style; extending for between three to four hours per day, with a number of short breaks taken during this time. Although Patricia reported general neck and headache discomfort while in attendance, these reports of pain did not unduly restrict her exhibited work performance."

Conclusion on Entitlement to Weekly Benefits

The parties agreed that the Applicant’s education, training and experience - as well as her aptitudes and vocational interests - best fit her for accounting, financial management and related occupations. The parties also agreed that the accounting/financial management occupational group is optimal for the Applicant’s physical limitations, since it makes only light physical demands and can be accommodated to the Applicant’s impairments. Though the Applicant’s counsel challenged Mr. Pett's positive assessment of the Applicant's cognitive abilities in cross-examination, I heard no evidence that the Applicant is cognitively impaired as a result of the accident.

The Insurer did not argue that the Applicant’s ceramics work is an occupation for which she is reasonably suited by education, training or experience. I find it is little more than a hobby from which the Applicant might hope to make a small bonus income. I am skeptical about the Applicant’s evidence that she only painted the pottery, leaving the "throwing" to her spouse. In any event, there is no suggestion that this activity took more than a few hours a week, and that it served a therapeutic and recreational purpose. I do not find it probative with respect to the Applicant’s ability to work on a sustained, competitive basis as a comptroller or in a comparable accounting or financial management occupation.

None of the experts who have assessed the Applicant have questioned her credibility, except for Dr. Costa and Ms. Mosgrove, whose evidence on this point I did not accept. The Applicant’s complaints to her doctors and the doctors who have examined her for the Insurer have been consistent and detailed, and have related specific symptoms to specific movements and activities. Her complaints and signs on physical examination form a coherent pattern of symptoms for which Dr. Quartly has offered a persuasive explanation. The Applicant does not claim that everything hurts all the time. She has admitted some improvements in her symptoms, especially her headaches, sleep problems and right hip, groin and leg problems. She has also admitted to engaging in leisure activities, and has given detailed and plausible accounts of how they have been limited by her symptoms.

My observation of the Applicant throughout the five days of hearing supports her complaint that she cannot sit or stand for more than about half an hour. I observed her to stand periodically throughout the hearing, bracing her lower back against the wall, probably for about a third of the time overall. She moved her neck stiffly. She appeared fatigued and distressed. I did not have the impression this was a performance for my benefit. The same behaviour and signs were noted by the experts who have assessed the Applicant at the request of both parties.³² I accept that the Applicant’s reported symptoms are genuine.

I have already given my reasons for dismissing the reports on which the Insurer relied. I heard no persuasive evidence that the Applicant can return to full-time work without a period of reintegration. Most recently, Dr. Craven, the occupational medicine specialist retained by the Insurer, recommended a graduated return to work because of her ongoing pain complaints, deconditioning and absence from the workforce.

I accept the Insurer’s submission that the Applicant probably could have returned to work earlier if she had relied less on passive therapies (massage, chiropractic, physiotherapy) and participated in more rehabilitation directed at increasing her functional level and helping her manage her pain. However, she did participate in psychological counselling and a stretching, strengthening and posture programme (the "Body Basics" programme) at Dr. Chong’s clinic. I find that she had good reason for not participating in the work hardening programme proposed by Ms. Forbes, given that Dr. Chong recommended against it and given the adversarial relationship that had developed with Ms. Forbes. I am somewhat troubled that the Applicant refused the Insurer’s offer of another rehabilitation consultant, but on balance I am unable to lay this entirely at her feet, since the parties relationship had broken down by this point. Moreover, the Insurer did not raise the issue again between late 1994 and the hearing in late 1997.

I find that the Applicant is entitled to weekly benefits to May 31, 1996 and ongoing because I find that she cannot work as a comptroller or in any suitable alternative occupation, as a result of her injuries sustained in the accident, on a full-time, competitive and sustained basis. Pursuant to section 15 of the Schedule, the Insurer is entitled to deduct from her benefits 80 percent of her net post-accident income. The Insurer did not dispute the Applicant’s evidence that she earned a net profit of $2,875.31 from her ceramics business between April and September 1997. The Applicant's benefits during this period will be $510.84 per week.³³

The advantage of the Applicant's plan to work from home on a self-employed basis is that it would allow her to self-pace her activities, more easily modify her workspace to accommodate her disability, and reduce the stress and fatigue related to meeting a fixed schedule. However, there are disadvantages to this plan too. Ms. Darzins commented that the Applicant is likely to have difficulty soliciting business and following through with her work to meet specified deadlines, because of her pain and relatively low self confidence. I accept Ms. Darzins' assessment that "this is likely to be a significant barrier" for the Applicant. Another problem may be isolation from colleagues who are able to provide advice, encouragement and assistance, important factors for someone attempting to return to the workforce after a five-year absence. This option may also necessitate a longer period of rehabilitation intervention, further delaying the Applicant’s vocational reintegration. I would encourage the Applicant to consider these options carefully. However, it is the Applicant who must finally decide how she will manage her reintegration to the workforce.

Conclusion on Medical and Rehabilitation Benefits:

Based on Dr. Quartly’s recommendations, I find that the Applicant is entitled to:

• a hydrotherapy programme that includes a strengthening component;

• a pain management programme; and

• a work hardening or other conditioning programme that includes aerobic, strength and endurance components.

Dr. Chong testified that the specific serotonin re-uptake inhibitor ("SSRI") anti-depressants can be effective in chronic pain cases. I am not persuaded that his concerns about possible over-reliance on medication apply to this class of drugs. If the Applicant's doctors recommend this therapy and the Applicant agrees, the Insurer shall pay for the cost of this medication.

I am not persuaded that any further passive therapies - massage, physiotherapy, chiropractic - are likely to benefit the Applicant after February 26, 1996, when the Insurer terminated these benefits. Claims for related travel expenses are also denied.

Conclusion on Vocational Rehabilitation Benefits:

There was little dispute that the Applicant needs an ergonomically-appropriate computer workstation for her home office. Based on the assessments of Ms. Darzins and Dr. Craven, I find that the Applicant is entitled to the following:

• an adjustable ergonomic chair with adjustable armrests;

• an adjustable keyboard table;

• an adjustable mouse table;

• an adjustable footrest;

• a document holder than can be placed between the screen and keyboard;

• the assistance of an ergonomist or occupational therapist, agreed upon by the parties, to help the Applicant choose and set up her workstation;

• the assistance of a vocational rehabilitation consultant, agreed upon by the parties, to help the Applicant establish her home-based business; and

• the assistance of an occupational therapist to assist the Applicant to return to work through a graduated schedule.

I am not persuaded that the Applicant needs a sloping desk surface for desk work, as this item was recommended only by Ms. Darzins and I heard no evidence as to its necessity in addition to the other modifications recommended.

The Insurer will provide a reasonable computer system and appropriate word processing and accounting software, the details to be agreed by the parties.

The parties agreed that the Applicant needs computer-upgrade training in order to make a successful return to work, but they disagree on how much retraining she will need. Mr. Pearce recommended a programme lasting six to eight months. I find this excessive. The Applicant indicated in her resume that she has taken courses several years ago in DOS, LOTUS 1-2-3, ACCPAC and Windows. I find that the Applicant has basic familiarity with computers but needs refresher upgrading in current operating systems (probably Windows 95/98), word-processing and accounting software. I leave the details to be agreed between the parties, and remain seized in case of dispute about the appropriate programme.

Mr. Pearce estimated at $10,000 the cost of Ms. Darzins' recommendations with respect to an ergonomic computer workstation.³⁴ I find this excessive. Ms. Mosgrove set out a range of alternatives for ergonomic assessment of a work station and for an ergonomic chair, keyboard, keyboard table, copy holder, mouse tray, foot rest, back rest and monitor stand.³⁵ Taking Ms. Mosgrove's average figures for each category of equipment, I expect that the cost for this equipment will be in the range of $800 plus delivery and installation charges (if any), plus PST and GST. Ms. Mosgrove also obtained preliminary estimates for ergonomic assessment of a work station by three different facilities. Though total figures were not provided, I would expect them to come in at or under the $2,000 range, based on the hourly rates set out in Ms. Mosgrove's report. Ms. Mosgrove provided no estimates for the cost of an appropriate computer system or workstation.

The assessors have differed in their recommended schedules for the Applicant’s gradual return to work. I am inclined to think that the best approach would be for the Applicant to start with two hours a day, five days a week, and increase her hours with the goal of reaching full-time hours by the end of three months.

My order is necessarily open-ended because the parties only seriously focussed on vocational rehabilitation in the weeks and months immediately prior to the hearing. As a result, costs and implementation strategies were not fully worked out. In addition, since the Applicant has not yet begun her rehabilitation programme, it is difficult to know how quickly she will progress. I expect the parties to work together expeditiously to implement my directions. I remain seized of the rehabilitation issues in case the parties are unable to agree on specific details.

Interest:

Subsection 24(1) of the Schedule says that medical and rehabilitation benefits are overdue 30 days after the insurer receives a completed application; interest is payable thereafter. In this case, full particulars of and supporting evidence for the Applicant’s vocational rehabilitation claim were not provided until the end of the hearing. Accordingly, interest is payable on these claims from February 16, 1998.

Special Award:

The Applicant claims a special award on the basis that the Insurer acted unreasonably in terminating her benefits in the face of opinions of the Applicant's treating doctors which said she remained disabled. Subsection 282(10) of the Act requires an arbitrator to give a special award where the insured person is found to be entitled to benefits and the insurer is found to have "unreasonably withheld or delayed" the payment of those benefits. The key word is "unreasonably": it is well established that an insurer is not liable to a special award just because an arbitrator finds that the insured person was entitled to benefits which the insurer denied. In this case, I found that the Insurer's IME reports, especially those of Dr. Soric and Dr. Costa, did not justify their terminating benefits. However, I do not think the Insurer was unreasonable to question Dr. Chong’s reports, given that he prescribed prolonged treatment which offered little long term benefit to the Applicant. The reports of Dr. Stubbs, Dr. Ghouse and Dr. Kronby raised legitimate questions about the Applicant’s claim, and her refusal to participate in a work hardening program or to work with the rehabilitation consultant appointed by the Insurer in Ms. Forbes place gave the Insurer additional reasons for taking the position they did.

With respect to the Insurer’s alleged failure to provide the necessary medical and rehabilitation assistance to get the Applicant back to work, I find that both parties failed to exhibit the willingness to cooperate that is necessary for successful rehabilitation.

Repayment of Chiropractic Benefits Overpaid:

The Insurer seeks repayment of chiropractic expenses paid after February 26, 1996 under the "pay pending dispute" provision, subsection 6(7). Subsection 27(1) of the Schedule requires a person to repay benefits overpaid "through error or fraud." There is no allegation of fraud in this case. A long line of arbitration decisions have held that repayment will only be ordered under this provision where the Applicant’s misconduct or misrepresentation contributed to the overpayment; repayment will not be ordered, for example, where it occurred as a result of the Insurer’s administrative error. In this case, the overpayment occurred when the Insurer continued to pay the Applicant’s chiropractic expenses pending resolution of the dispute with respect to the Insurer's termination of these benefits in February 1996. Subsection 6(7) and section 27 are silent on this point, and the 1990 Schedule does not set out any particular process for claiming and disputing medical and rehabilitation benefits; the subsequent benefit schedules, introduced in 1994 and 1996, limit the chiropractic benefits payable pending dispute resolution.

The Insurer provided no case-law or submissions as to my authority to order repayment in this situation. In the absence of submissions on the point, I am not persuaded I have authority to make the order sought. In any event, considering her ongoing symptoms and that she was acting on the advice of Dr. Chong, I am not satisfied that the Applicant’s decision to continue chiropractic treatment was unreasonable or improper, despite the fact that it had given little or no long-term benefit and that the Insurer’s expert had recommended discontinuing it.

Arbitration Expenses:

As the Application for Appointment of an Arbitrator was filed before the Insurance Act and Expense Regulation were amended effective November 1, 1996, the applicable principles are those in effect at the time of the application. The Insurer did not ask me to deny the Applicant her arbitration expenses, and I do not find this an appropriate case for doing so. The Applicant is entitled to her expenses in accordance with Schedule F of the Dispute Resolution Practice Code (April 15, 1997). If the parties are unable to agree on the amount payable, the dispute may be resolved in accordance with Rule 77 of the Code.

Order:

1. The Insurer will pay the Applicant weekly income benefits of $600 per week from December 5, 1995 and ongoing, less 80 percent of her net post-accident income, plus interest as provided under section 24 of the Schedule. The benefit payable from April to September 1997 is $13,179.75 plus interest.

2. The Insurer will provide the following medical and rehabilitation benefits:

a. anti-depressant medication;

b. a hydrotherapy programme that includes a strengthening component;

c. a pain management programme;

d. a conditioning or work hardening programme that includes aerobic, strength and endurance components;

e. a computer system;

f. a computer work station;

g. word processing and accounting software;

h. a computer skills refresher course;

i. ergonomic workstation modifications and equipment as follows:

(i) an adjustable ergonomic chair with adjustable armrests;

(ii) an adjustable keyboard table;

(iii) an adjustable mouse table;

(iv) an adjustable footrest;

(v) a document holder than can be placed between the screen and keyboard;

j. the assistance of an ergonomist or occupational therapist, agreed upon by the parties, to help the Applicant choose and set up her workstation;

k. the assistance of a vocational rehabilitation consultant, agreed upon by the parties, to help the Applicant establish her home-based business; and

l. the assistance of an occupational therapist to assist the Applicant to return to work in accordance with the guidelines for a graduated schedule set out in the decision.

3. I remain seized of the issues set out in paragraph 2, and may be spoken to in case of any disagreement about the details and amounts of the benefits payable.

4. The Insurer shall pay interest is payable on the benefits set out in paragraph 2 in accordance with section 24 of the Schedule, from February 16, 1998.

5. The Insurer will pay the Applicant’s arbitration expenses pursuant to the Expenses Schedule (Regulation 664). I remain seized in case of any dispute about the amount payable.

July 23, 1998

Nancy Makepeace

Arbitrator

Date

APPENDIX

Present at the Hearing:

Applicant: Patricia Harrison

Mrs. Harrison’s Representative: David F. Smye, Barrister and Solicitor

Wellington's Representative: Chris Blom, Barrister and Solicitor

Wellington’s Officer: Robert Webster, Casualty Specialist

Witnesses:

The Applicant

Ms. Dorothy Amos, the Applicant’s sister

Dr. J. Chong, physical medicine and rehabilitation specialist

Mr. Terry Pearce, Rehabilitation Consultant

Ms. Julie Mosgrove, Medical/Vocational Services Manager, Med-Pro Health Care Management Services

Mr. Graham Pett, Senior Evaluator/Facility Director, Career Probe Inc.

Dr. C. Quartly, physical medicine and rehabilitation specialist

Exhibits:

Exhibit 1: Applicant’s brief, vol. 1

Exhibit 2: Applicant’s brief, vol. 2

Exhibit 3: Applicant’s brief, vol. 3

Exhibit 4: Applicant’s brief, vol. 4

Exhibit 5: Insurer’s brief

Exhibit 6: Applicant’s resume

Exhibit 7: Review of Applicant's attendances (chart)

Exhibit 8: Photographs of Applicant’s car following the accident

Exhibit 9: Applicant’s statement of her ceramics sales

Exhibit 10: Expenses (7 pages)

Exhibit 11: Expenses (3 pages)

Exhibit 12: Expenses

Exhibit 13: Expenses

Exhibit 14: Income tax return brief

Exhibit 15: Dr. Costa, November 9, 1995

Exhibit 16: Applicant's notes with respect to her examination by Dr. Soric

Exhibit 17: Dr. Chong's CV

Exhibit 18: Excerpt from Clinic's Program and Services Guide

Exhibit 19: Dr. Soric, July 26, 1995

Exhibit 20: Mr. Pearce's CV

Exhibit 21: Ms. Mosgrove's CV

Exhibit 22: Ms. Mosgrove, November 21, 1997

Exhibit 23: Ms. Mosgrove, November 26, 1997

Exhibit 24: Mr. Pett’s CV

Exhibit 25: Dr. J. Stubbs, September 2, 1993

Exhibit 26: Dr. Stubbs, March 8, 1994

Exhibit 27: Mr. Pearce, December 15, 1997

Exhibit 28: Surveillance videotape

Exhibit 29: Dr. Quartly's CV

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 On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Exhibit 3, Tabs B2, B4, B5, B6 and B8
3. 3Exhibit 3, Tab A1
4. 4Exhibit 3, Tab A2
5. 5Exhibit 3, Tab 8; Exhibit 6
6. 6Exhibit 1, Tab A2
7. 7Exhibit 1, Tab A5
8. 8Exhibit 2, pages 23-24 and 35-36
9. 9Exhibit 1, Tab A3
10. 10Exhibit 7
11. 11Exhibit 3, Tab B3. The hospital report is found at p. 45 of Exhibit 2, but it is illegible.
12. 12Exhibit 1, Tab A1
13. 13Exhibit 3, Tabs B5 and B6
14. 14Exhibit 3, Tab B9
15. 15Exhibit 1, Tab B27. Dr. Millett, the Applicant’s chiropractor, explained that meralgia paresthetica is a syndrome of symptoms caused by compression of the lateral cutaneous nerve by the sartorius muscle.
16. 16May 11, 1995 report: Exhibit 1, Tab B34
17. 17January 16, 1996, Exhibit 2, p. 122
18. 18Exhibit 19
19. 19Exhibit 16
20. 20The phrase "pain behaviour" is often used to imply that the person being assessed reports pain or shows typical responses to pain (by grimacing, flinching, or restricting movement) though the examiner can find no orthopaedic or neurological injury which could explain the pain. Since pain is by nature subjective, and it is well known that soft tissue injuries may cause pain despite their being no apparent orthopaedic or neurological injury, a report of "pain behaviour", without more, is unhelpful and reflects circular reasoning.
21. 21Wiseman and Coachman Insurance Company (June 10, 1994), OIC A-005706
22. 22Exhibit 15
23. 23Exhibits 25 and 26
24. 24Exhibit 1, Tab B25
25. 25Exhibit 1, Tab B42
26. 26Exhibit 1, Tab B23
27. 27Exhibit 1, Tab B46
28. 28The Insurer agreed to pay for this programme.
29. 29Exhibit 5, Tab 3
30. 30Exhibit 5, Tab 3
31. 31This was also evident in her focus on consistency testing.
32. 32For example, Gail Forbes, the Rehabilitation Consultant retained by the Insurer, who noted on July 15, 1994 that the Applicant "found it necessary to move around on two occasions" during their meeting at the Applicant’s home.
33. 33The Applicant's base rate of $600 less $89.16, which is 80 percent of $111.45 per week for 25.8 weeks. Exhibit 9.
34. 34Exhibit 1, Tab B50
35. 35Exhibit 23