Neutral Citation: 1998 ONICDRG 111

OIC A97-001015

ONTARIO INSURANCE COMMISSION

BETWEEN:

VELIA SOOS

Applicant

and

CANADIAN SURETY COMPANY

Insurer

DECISION

Issues:

The Applicant, Velia Soos, was injured in a motor vehicle accident on December 9, 1994. She applied for and received statutory accident benefits from Canadian Surety Company ("Canadian Surety" or "the Insurer"), payable under the Schedule.¹ Canadian Surety terminated her weekly income replacement benefits on July 24, 1995.

The parties were unable to resolve their disputes through mediation, and Mrs. Soos applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Soos entitled to receive weekly income replacement benefits under section 7 of the Schedule after July 24, 1995 ?

2. Is Mrs. Soos entitled to the supplementary medical expenses she claims for: (1) treatment for dental services by Dr. Tsang under section 36(1)(a) of the Schedule and (2) nutritional counselling by The Inside Edge under section 36(1)(h) of the Schedule?

Mrs. Soos also claims interest on any amounts owing and her expenses incurred in the hearing.

Result:

1. Mrs. Soos is entitled to receive weekly income replacement benefits after July 24, 1995, as long as she satisfies the requirements of Part II of the Schedule.

2. Mrs. Soos is entitled to recover the amount of $1,277.26 paid for dental services rendered by Dr. Tsang and to be paid the amount owing of $330 for nutritional counselling provided by The Inside Edge.

Mrs. Soos is also entitled to interest on the above amounts and her expenses of the hearing.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on May 11 and 13, 1998, before me, Shari L. Novick, Arbitrator.

Present at the Hearing:

Applicant:

Velia Soos

Mrs. Soos's

L. Brent Vickar

Representative:

Barrister and Solicitor

Canadian Surety's

A. Wayne Edwards

Representative:

Barrister and Solicitor

Canadian Surety's

Rose Borrelli

Officer:

Witnesses:

Velia Soos

Dr. Edward Sheffman

Exhibits:

The parties filed five exhibits at the hearing, including two document briefs.

Evidence and Findings:

Mrs. Soos was a passenger in her father-in-law's automobile on December 9, 1994 when it was struck on the right side by another vehicle. The impact of this collision caused their vehicle to spin out of control, cross a few lanes of oncoming traffic and hit a guardrail on the other side of the road. While she did not seek emergency treatment immediately after the accident, Mrs. Soos explained that she began to experience headaches, dizziness, and pain in her neck and right arm over the course of the next two days which led her to attend at the emergency room at the York County Hospital on December 11, 1994. The hospital records filed indicate that she was prescribed pain medication and was diagnosed as having suffered a cervical strain injury.

Prior to the accident, Mrs. Soos had been employed as a cook and kitchen worker at a pizza parlour in Brampton. She received income replacement benefits from the Insurer in the amount of $362.81 per week from December 16, 1994 until July 24, 1995, when her benefits were terminated on the basis of a disability assessment performed by Dr. Edward Sheffman. The quantum of weekly benefits is not in dispute.

The parties agree that in the event that I find that the Applicant meets the test of disability set out in the Schedule, she would be entitled to receive income replacement benefits at the rate set out above from July 24, 1995 until a Loss of Earning Capacity offer is made by the Insurer and accepted by her, despite the two year period referred to in subsection 7(1) of the Schedule having passed.

Mrs. Soos has not returned to work since the accident. While she acknowledges that some of her physical symptoms have improved over time, she states that she continues to experience pain in her neck and right arm. She alleges that these lingering physical symptoms, as well as the psychological difficulties she has suffered as a result of the injuries sustained in the accident prevent her from returning to her pre-accident employment. She also claims that the stress that resulted from her injuries has caused her to experience difficulty swallowing, which resulted in a dramatic weight loss and general fatigue, which has in turn contributed to her inability to return to work.

Entitlement to weekly income replacement benefits after July 24, 1995:

In order to qualify for income replacement benefits after July 24, 1995, Mrs. Soos must meet the test set out in section 7 of the Schedule. Given that she was employed at the time of the accident, she must demonstrate that she sustained an impairment as a result of the accident from which she suffers a substantial inability to perform the essential tasks of her pre-accident employment. "Impairment" is defined in section 1 as meaning "a loss or abnormality of psychological, physiological or anatomical structure or function."

In order to determine whether the Applicant remains substantially disabled to perform the essential tasks of her employment, the evidence relating to her job duties, as well as her physical and psychological injuries must be considered.

The Applicant's evidence

Mrs. Soos had been working at the pizza parlour for approximately one month prior to being involved in the accident in question. She explained that her job consisted of kitchen duties such as preparing pizza sauce and dough and cutting ingredients for toppings, as well as assisting with order taking at the counter when the restaurant was busy. She stated that she also helped with various cleaning tasks as required. The Employer's Confirmation of Income form filed indicated that Mrs. Soos was required to bend, lift, walk and stand while performing these duties. The Applicant testified that she performed all of her functions while standing, and that she was required to lift heavy items such as pots of sauce, trays of prepared dough as well as bags of flour weighing between 25 and 30 pounds at various times during her nine hour shifts. She allowed that the other employees at the restaurant would assist her in lifting the large bags of flour if they were available.

Although Mrs. Soos had been unemployed for approximately one and one-half years prior to beginning her job at the pizza parlour, she had worked in the food business for the better part of the eight years preceding the accident.

The Applicant testified that while she experienced stiffness and pain on the right side of her neck, pain down through her right arm, lower back pain and headaches during the first few months following the accident, these symptoms, save for her headaches, had improved and her general level of pain had decreased by the following summer. She received regular physiotherapy treatments for her neck, right arm, back and head from January until May of 1995, after which she participated in a work-hardening program which was completed in early August, 1995. The report discharging her from the program indicates that she had met the essential tasks of her pre-accident occupation and could return to work, but should exercise caution when lifting and carrying heavy items.

Mrs. Soos further testified that despite feeling somewhat better at that point in time she continued to have trouble sleeping and became very frustrated and upset because she could no longer care for her family and run the household as she had done in the past. At the relevant time Mrs. Soos' three children lived at home with her and her husband, who sustained a back injury in 1991 and has not been able to return to work.

The Applicant also explained that she began experiencing difficulty swallowing food or liquids in the spring of 1995 and that despite consulting various specialists over the following eighteen months, no physical basis for this problem had been identified. Mrs. Soos lost approximately 40 pounds in the year following the accident as a result of this problem and explained that she felt very weak and had significantly less energy than she had before.

The Applicant was referred to Dr. Godwin Lao, a psychologist, during the fall of 1995 to address her inability to sleep or relax. Dr. Lao provided the opinion in October of 1995 that the Applicant was suffering from chronic pain syndrome and was experiencing chronic adjustment disorder. He indicated that he felt that the Applicant could return to work on a trial basis, beginning with two to three hours per day.

Evidently, Mrs. Soos' job at the pizza parlour was no longer available at that point in time and discussions were held with the case manager about placing her at a restaurant in Richmond Hill in early December, 1995. She testified that although she was still in pain and was unable to lift objects with her right arm, she was willing to try to return to work. The evidence indicated that the arrangements for this work trial ultimately fell through, although the reasons for this were unclear.

Mrs. Soos testified that she did not look for work during 1996 because she did not feel that she was either mentally or physically able to work, and explained that she spent most of her time during that year visiting doctors. She testified that she applied for various sales positions at department stores in the early spring of 1997 but was not successful in obtaining a job. Mrs. Soos stated that she did not feel that she could return to the type of work she had performed prior to the accident, as she is unable to stand for long periods of time and cannot lift or carry heavy items. She doubted that she could ever go back to working in the food business in light of these limitations, and the fact that her right arm tires easily and becomes painful after a few hours of use.

Mrs. Soos stated that she continues to experience difficulty sleeping, and that despite taking medication for this problem, she only manages to sleep two to three hours each night. She stated that she continues to take pain medication, as well as Valium and another drug that she could not identify to combat anxiety.

Medical evidence

Dr. Salsberg has been the Applicant's family doctor since 1982. The Health Practitioner's Certificate he completed two weeks after the accident indicates a primary diagnosis of a whiplash injury to the neck and a secondary diagnosis of post-traumatic headaches. Dr. Salsberg did not testify at the hearing, but his notes and records that were produced as well as the various reports he provided confirm that he played a major role in Mrs. Soos' post-accident treatment.

An Assessment of Disability form completed by Dr. Salsberg on May 15, 1995, indicates his view at that time that the Applicant was able to return to work as a pizza maker on a part-time basis, while noting that she exhibited significant restriction in the range of movement of her neck and continued to require physiotherapy.

Dr. Salsberg was subsequently asked to comment on the disability assessment performed by Dr. Sheffman in July of 1995. In his report he expresses surprise that a full range of motion in the Applicant's neck region was able to be obtained upon examination by Dr. Sheffman, and disagreed with the opinion expressed at the conclusion of the assessment that she was no longer disabled, stating that she continued to suffer from chronic pain syndrome. A letter sent to him by the case manager in September of 1995 indicates his agreement at that point that Mrs. Soos was able to meet the physical demands of her pre-accident employment, with the exception of lifting or carrying heavy objects. He stated, however, that she should not be released to full-time employment until she is willing to return to work.

In February of 1996 Dr. Salsberg signed a Physician's Release to Employment Form indicating that Mrs. Soos was capable of returning to her pre-accident employment on the condition that her dysphagia (difficulty with swallowing) was not related to stress from the accident. Finally, Dr. Salsberg issued a report in January, 1997 in which he opined that the Applicant's continuing headaches resulted from temporomandibular joint dysfunction caused by the accident and that her swallowing problem resulted from stress and depression from the injuries she sustained in the accident. He stated that she remains totally disabled from working, and that he could not predict how long her injuries would take to heal, or when she would be able to return to work.

Dr. Sheffman is the medical director of the North York Pain Clinic, an approved Designated Assessment Center. He performed a disability assessment on the Applicant on July 12, 1995, in which he stated that while Mrs. Soos continued to have symptoms of chronic pain, there were no positive physical findings on examination that correlated with the symptoms described. His report concluded that "there were no distinct positive findings which would suggest or indicate that claimant remains disabled as a result of her involvement in the previously described motor vehicle accident."

Dr. Sheffman provided oral evidence at the hearing. He testified that Mrs. Soos had complained of chronic pain but that symptoms of chronic pain would not prevent her from performing the essential tasks of her pre-accident employment. However, when asked whether he had been provided with any information about the amount of lifting her pre-accident job entailed or whether she performed her duties while sitting or standing, Dr. Sheffman indicated that he had not been made aware of these details. Dr. Sheffman stated that he had also not been advised of Mrs. Soos' swallowing difficulties and that he had not asked her about her weight loss during his examination. Most significantly, when asked to clarify his conclusion that the Applicant did not remain disabled as a result of the accident, he replied that the results of his examination revealed that she was not disabled in a general sense, but that he had not specifically related his findings to her ability to perform her pre-accident work.

The Applicant subsequently underwent a psychiatric assessment by Dr. Bernstein in March of 1996, at the request of the insurer. In the subsequent report filed, Dr. Bernstein stated that in the absence of any physical problems being identified as the cause of Mrs. Soos' swallowing difficulties "it is likely that a behavioural component is responsible for her difficulties in this area." He goes on to say that given the gap in time between the accident and the onset of the swallowing difficulties, it is unlikely that this problem was caused by the accident. In any event, Dr. Bernstein recommends that the Applicant undergo a course of electromyographic feedback to target her swallowing disorder. He concludes by stating that "her presentation is not currently consistent with a diagnosis of Post Traumatic Stress Disorder" and that he "could not detect any evidence of ongoing psychological injury preventing Ms. Soos from a return to her pre motor vehicle vocational and avocational activities."

Dr. Lao, the psychologist who diagnosed Mrs. Soos as suffering from chronic adjustment disorder and chronic pain syndrome in October of 1995, conducted another assessment of the Applicant in March of 1998. Based on his interview with her and the results of various psychometric tests, he opined that she continues to experience chronic adjustment disorder with anxiety and depression features and chronic pain disorder with both physical and psychological factors contributing to her pain. He added that she is experiencing "at least a moderate level of psychological impairment which is translated into her difficulty in carrying out any occupations on a full-time basis", but stated that he supports a return to modified work on a gradual basis as a way to test and improve her physical and psychological endurance.

Finally, the Applicant was seen by Dr. Kekosz, a physiatrist at Sunnybrook Hospital in April of 1998. Dr. Kekosz examined Mrs. Soos and reviewed the various medical findings that had been made since the accident as well as the treatments that had been prescribed. She diagnosed the Applicant as suffering from post-traumatic soft tissue chronic pain syndrome and concluded that a "prognosis for return to any form of full-time work in her previous capacity is highly unlikely, due to the presence of her chronic pain syndrome" and that "depending on the results of investigations and biofeedback treatment of the swallowing disorder, potential light sedentary part-time work may be a possibility in the future."

Findings:

Extensive medical evidence was filed by the parties in this case, commenting on a range of physical and psychological symptoms experienced by the Applicant over the three and one-half years that transpired between the accident and the hearing. The Schedule requires that my analysis of whether Mrs. Soos is entitled to income replacement benefits after July 24, 1995 (subject to any future LEC offer) be restricted to a determination of whether or not she remained substantially unable to perform the essential tasks of her job as a cook and kitchen worker at the pizza parlour she worked at prior to the accident, as opposed to determining the appropriate medical diagnosis. The evidence must accordingly be weighed with that focus in mind, as well as the fact that the Applicant bears the onus of proving that she meets this test on a balance of probabilities.

It is now well accepted that in order to find that an applicant is substantially unable to carry out the essential duties of his or her pre-accident employment, a sizable inability, as opposed to merely an inability to perform certain tasks, must be demonstrated. I note that many arbitrators have cited and adopted the following statements made by Senior Arbitrator Naylor in Flemming and Wawanesa Mutual Insurance (April 28, 1992), OIC A - 000406:

...the fact that the Applicant is able to perform some functions of her occupation on a part-time basis does not address the standard of disability set out in the regulations...In determining an applicant's ability to perform his or her essential occupational or employment tasks, the demands of such tasks cannot be evaluated in isolation from the broader employment context.

Analysing the evidence presented with these principles in mind, I find that the Applicant meets the test set out in section 8(1) of the Schedule and is therefore entitled to income replacement benefits beyond July 24, 1995, subject to the acceptance of a Loss of Earning Capacity offer. While pain itself is not compensable under the Schedule, the functional limitations that result from pain can be determinative of an applicant's entitlement. When Mrs. Soos' continuing physical limitations such as right arm pain, regular headaches and general fatigue are combined with the psychological symptoms described, I am persuaded that she is substantially unable to perform many of the tasks she undertook at the pizza parlour prior to the accident on a full-time basis, and that these tasks can be deemed "essential" to her job.

The Applicant's testimony regarding her job duties was uncontradicted: she was required to stand during most of her nine hour shift, she consistently used her arms to cut ingredients for toppings, cook sauce and prepare dough, and was regularly required to lift and carry heavy objects. While she conceded in cross-examination that she could usually find someone to assist her in lifting the 30-pound bags of flour, it is unrealistic to assume that she could expect similar assistance whenever she needed to lift a pot of sauce from the stove or carry a tray of pizza crusts, which could weigh up to 20 pounds, from the freezer. Given the frequent physical movements inherent in the kitchen duties she was required to perform, in addition to the strength required in lifting and moving large objects, I find that someone with the Applicant's limitations could not be expected to physically perform the essential duties inherent in her position, nor have the stamina to complete her scheduled hours.

The Insurer terminated the Applicant's benefits on the basis of Dr. Sheffman's assessment in mid-July of 1995. Dr. Sheffman concluded on the basis of his examination of Mrs. Soos that she was no longer disabled as a result of her involvement in the accident, but when questioned further about this finding he stated that he based this conclusion on an assessment of her disability "in a general sense", as opposed to specifically relating her limitations or remaining symptoms to her ability to perform the essential duties of her pre-accident employment. In light of this evidence, I find Dr. Sheffman's assessment to be of limited use in determining the somewhat narrow question I must decide.

Much of the evidence referred to by counsel in their final submissions related to Mrs. Soos' ability to return to work at various points in time. Counsel referred to Dr. Salsberg's various statements and reports, noting that he approved the Applicant's return to part-time work in May of 1995, agreed that she was able to meet the physical demands of her pre-accident employment with the exception of lifting or carrying heavy objects in September of that year, and cleared her for full-time employment by February of 1996 on the condition that her swallowing difficulties were not related to stress caused by the accident. Dr. Salsberg's final report in January of 1997, however, expressed the opinion that Mrs. Soos was totally disabled from working at that point in time, and concluded that he was unable to state when she would be able to return to work.

While it would have been useful to hear Dr. Salsberg’s evidence and explanations for his varying opinions at these different points in time, the excerpt from the Flemming case cited above indicates that the focus of the inquiry must be on the applicant's ability to perform the essential tasks of her job as opposed to whether or not certain tasks could be performed on a part-time basis. Consequently, the issue to be addressed is whether Mrs. Soos was unable to perform those duties that were fundamental to her position in a significant way, as opposed to whether she was capable of performing certain duties on a part-time basis.

While Insurer counsel characterized Dr. Salsberg's changing opinions on the Applicant's ability to return to work as a "flip-flop," the picture that emerges from all of the evidence before me is that while some of Mrs. Soos' physical symptoms may well have improved over time, her lingering headaches and continuing pain in her right arm caused her stress and anxiety which in turn resulted in her experiencing difficulty sleeping and swallowing foods or liquids. While there was no direct evidence establishing a clear link between the accident and her swallowing difficulties, in the absence of any physical basis for such a condition being identified, I accept Dr. Salsberg's conclusion that this was caused by stress resulting from the accident. Given the central role played by Dr. Salsberg in the Applicant's post-accident care and the regular intervals at which he saw her, I attribute greater weight to his opinion respecting this ongoing condition than the observations of other doctors she may have only seen once. While the insurer pointed to the gap in time between the accident and the onset of this difficulty, as well as the Applicant's history of a hiatus hernia, I note Dr. Salsberg's notation in June of 1995 that she had been experiencing these difficulties for the past three months as well as the Applicant’s evidence that she had never experienced these symptoms prior to the accident.

I note the following comments on causation in Senior Arbitrator Naylor’s decision in Rodway and Royal Insurance Company of Canada (June 12, 1995), OIC A-007593:

I am not required to determine causation on the basis of scientific or medical certainty. An applicant need only establish a probable connection - proof on the balance of probabilities. An adjudicator, in making that connection, is entitled to rely on common sense (Farrel v. Snell (1990), 1990 CanLII 70 (SCC), 72 D.L.R. (4th) 289 (S.C.C.)).

The arbitrator then went on to determine that in the context of the overall medical evidence before her it was reasonable to draw an inference of causation, finding that the Applicant's injuries were more likely than not caused by the accident.

In the final analysis, I am persuaded that a probable connection does exist between the accident and the Applicant's swallowing difficulties. Mrs. Soos' 40-pound weight loss and resulting fatigue and decrease in energy is an understandable consequence of her swallowing difficulties, and a significant contributor to her disability.

Insurer counsel pointed to other sources of stress in the Applicant's life such as the death of her parents and difficulties experienced with her developmentally delayed son, and argued that they were the real reason why she had not returned to work. While it is difficult to draw clear lines in cases such as this and assess the impact of each factor on an applicant's overall condition, I am persuaded that while some of these factors may have contributed to her condition, the injuries she sustained as a result of the accident were the significant or material cause of her difficulties and as such, she remains entitled to benefits.

While the issues in this matter fall to be decided on the tests set out above, the credibility of the Applicant plays a large role in a case of this type. There were numerous mentions in the various reports filed that Mrs. Soos was forthcoming with any necessary information and that she exhibited a consistency of complaint throughout the process. Her demeanour at the hearing seemed consistent with these observations, and I generally found the Applicant's evidence to be credible. The reports filed also indicated that she cooperated fully in all stages of her treatment and I was not left with the impression that she was exaggerating her symptoms or that she was seeking to avoid having to go back to work. I note that she agreed to attend the work trial that the caseworker had arranged which ultimately fell through, and that she had applied for various jobs in 1997 on her own initiative, all of which persuade me that the testimony she provided was credible.

Entitlement to supplementary medical expenses:

Mrs. Soos claims payment for expenses incurred for dental services provided by Dr. Tsang, as well as for nutritional counselling by The Inside Edge. She testified that she consulted Dr. Tsang in mid-1996, and that he diagnosed her complaints of continuing pain in her temples as resulting from temporomandibular joint dysfunction. Dr. Tsang recommended physiotherapy treatment and splint therapy: the Applicant testified that she attended physiotherapy for this for a period of time and wore the splint provided for approximately one year, and that these contributed to her symptoms subsiding by late 1997. Dr. Tsang stated in his report that as he had not seen Mrs. Soos either before or immediately after the accident he could not determine with any certainty that her condition was directly caused by the accident but that "...from her description of the accident, damage to the temporomandibular apparatus is quite likely."

The Insurer argues that this evidence is insufficient to prove that a causal link exists between the diagnosis of TMJ dysfunction and the accident in question. Counsel noted that Dr. Salsberg's clinical notes indicate that the Applicant complained of bitemporal headaches after an earlier motor vehicle accident in December of 1989 and contended that without any records from this earlier period it is not possible to conclude that the accident in question was the cause of her condition. The parties agreed that the amount in issue is $1,277.26.

While there may not be any direct evidence linking Mrs. Soos need for dental treatment to the accident in question, I find that on a balance of probabilities enough evidence exists to establish a causal link between the two events. Despite the reference in Dr. Salsberg's notes to her having experienced headaches as a result of an accident she had been involved in five years prior, I note that there is no record of continuing complaints of this sort during the interim period. The Insurer has not provided any evidence to counter Dr. Tsang’s opinion that the accident was a likely cause of Mrs. Soos' TMJ dysfunction, and it seems that the treatment she received from him afforded her the desired relief from her bitempolar headaches. I therefore find that the dental services provided constitute a reasonable expense under section 36(1) of the Schedule and that the Insurer is liable to pay the amount of $1,277.26 in this regard.

Mrs. Soos also explained that she was referred by her family doctor to a physiatrist, Dr. Gordon Ko, who in turn referred her for nutritional counselling. She stated that she received counselling on how to prepare food that she could swallow to ensure that she received the nutrients that she needed, and that this assisted her in regaining some of the 40 pounds that she had lost. The Insurer argued that the need for this service could not be linked back to the accident and that it should not therefore be required to pay the outstanding invoice of $330.

Once again, I am satisfied that the Applicant has established the requisite causal link between the need for the treatment and the accident. In the absence of a physical basis having been identified for Mrs. Soos' swallowing difficulties, I accept the opinions of Dr. Salsberg that this problem results from stress relating to the injuries she sustained in the accident. I find this expense to be directly attributable to her swallowing difficulties, as well as reasonable within the meaning of section 36(1)(h) of the Schedule and order the insurer to pay the outstanding amount of $330.

Expenses:

The Applicant seeks payment for the expenses that she has incurred in pursuing this arbitration. Given her success on both issues in dispute, I find that an award for expenses is justified. I was advised that no written offers to settle were made by either party. In the event that the parties cannot agree on the total amount of expenses payable, either party may apply to the Registrar for an assessment of expenses under Rule 77 of the Dipute Resolution Practice Code (thirdEdition) - April 15, 1977. The Applicant should note that she has thirty days from the date of this decision to provide the insurer with particulars of the expenses claimed.

Order:

1. Canadian Surety Company shall pay Mrs. Soos weekly income replacement benefits from July 24, 1995 pursuant to section 7 of the Schedule at the rate of $362.81 per week, as long as she satisfies the requirements of Part II of the Schedule.

2. Canadian Surety Company shall pay Mrs. Soos the amount of $1,277.26 for dental services rendered by Dr. Tsang and the amount of $330 for nutritional counselling provided by The Inside Edge.

3. Canadian Surety Company shall pay Mrs. Soos interest pursuant to section 68 of the Schedule as well as her expenses incurred in this arbitration.

Shari L. Novick

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.