Neutral Citation: 1998 ONFSCDRS 15

FSCO A96-000608

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

C. M.

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

Issues:

C. M. lives in Welland and worked as a nursing supervisor until she was injured in a car accident on August 10, 1995. She received income replacement benefits¹ from Pilot Insurance Company ("Pilot") until January 8, 1997, when Pilot terminated benefits on the basis that she was no longer disabled from her employment. Ms. M. claims that she is still disabled and therefore requires ongoing income replacement benefits plus funding for vocational training.

The issues in this hearing are:

1. Is Ms. M. entitled to recover income replacement benefits (IRBs) for any period beyond January 8, 1997?

2. Is Ms. M. entitled to recover the cost of vocational training?

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

Result:

1. Ms. M. is not entitled to recover IRBs for any period beyond January 8, 1997.

2. Ms. M. is not entitled to recover the cost of vocational training.

Evidence and Findings:

Background

Ms. M., now 51 years old, was involved in an accident on August 10, 1995, when her car was hit from behind by another driver. At the time of the accident, Ms. M. was working part time at the Grandview Regional Nursing Home (Grandview) as a nursing supervisor. Her job required frequent standing, sitting and bending, and very minimal lifting. Much of her time was spent either sitting at a desk or pushing a medication cart through the ward in order to provide medications to the patients. She worked an average of 24 hours a week.

Before this accident, Ms. M. had some profound physical and mental problems. In 1985 she injured her back while attempting to lift a patient, and received Workers' Compensation benefits. Although she returned to work after two weeks, it took two years for her to resume normal activities. She had a car accident in 1990 which left her with painful knees, feet, back and left shoulder. She was treated with physiotherapy and over a period of two years made some recovery, but was left with residual backache. As a result she gave up any heavy nursing work, including lifting patients. She then stopped working entirely in December of 1992, due to complaints of "fluttering heart rate and malaise."²

In January, 1993, Ms. M. was hospitalized following a "psychotic breakdown." She was diagnosed as schizophrenic, with paranoid delusions, and was held involuntarily at Hamilton Psychiatric Hospital until November, 1993. The discharge summary noted that on admission she was "markedly delusional...she insisted there was a conspiracy against her." This included beliefs that others were attempting to poison her and that she was pregnant, despite having a tubal ligation several years earlier and numerous negative pregnancy tests.

She returned to part-time work at Grandview in the summer of 1993 but continued to complain of hip pain and joint discomfort. In April, 1994, her family physician, Dr. L. Rifling, noted that she "still seemed quite paranoid." In June, 1994 Dr. Rifling noted that she was no longer working and is "very paranoid...she won't follow recommendations." Her family, Dr. Rifling and Dr. Dain, the psychiatrist who treated her at Hamilton Psychiatric Hospital, considered a further involuntary admission. In that same month her back symptoms were reaggravated after her husband kicked her in the back and hips. On July 27, 1994, Dr. Rifling noted that she was still "not well enough to work." It is not clear how long before this accident she returned to work at Grandview.

The Accident and its Aftermath

Immediately after the accident Ms. M. got out of her car, unassisted, and conversed with the other driver and his wife. Although the police attended at the accident scene, Ms. M. did not request an ambulance nor did she seek medical attention until one week later, when she attended a walk-in clinic. She advised the clinic physician that she had missed two shifts at work because she had injured her left arm in the accident but felt "able to return to work."³ The clinical note from Medemerg Walk-In Clinic states that she also complained of "some exacerbation of back pain, which, she previously had for one year."⁴

Ms. M. later developed complaints of pain in her left hip and neck, and her back continued to trouble her. She received chiropractic care and physiotherapy, along with laser and acupuncture treatments. She attempted to return to work on one occasion in December, 1995, but lasted only one shift because of pain following prolonged standing. Pilot paid her IRBs until January of 1997, on the basis of various medical reports from Ms. M.'s chiropractor, Dr. Taylor, and a DAC report of January, 1996. It then terminated benefits on the basis of a DAC report from Dr. Josefchak advising she could return to work.

Entitlement to Income Replacement Benefits

Ms. M. argues that she is disabled from working because of injuries to her back, arms and shoulders from this accident. However, neither the medical evidence nor her own testimony persuade me that this is so.

I deal first with the medical evidence. Ms. M. relied on Dr. R. Taylor, her chiropractor, who provided several notes to Pilot suggesting that Ms. M. was disabled from work. I have several difficulties with Dr. Taylor's advice. First, in his initial report of October 3, 1995, he placed significant emphasis on x-rays which showed disc wedging at the L4 & L5 region. However, he incorrectly stated that there "does not appear to be any pre-existing condition previous to the motor vehicle accident that could be contributory," and advised that he could not "identify any other causative factors."⁵ Ms. M.'s longstanding history of back problems may well have explained the abnormalities that appeared on the x-rays and at least some of the symptoms she complained of to him.

Second, despite any concerns he may have had, Dr. Taylor stated that Ms. M. was then "progressing well" and predicted that she "will be able to return to work sometime over the next three to six weeks." On October 30, he advised Pilot that Ms. M. could return to work on November 25, 1995. Subsequently, his correspondence to Pilot consists only of several brief notes, often two or three lines, in which he simply stated that she remains disabled. On September 10, 1996, he advised that her condition is "now characteristic of chronic pain syndrome," a diagnosis for which he provided no supporting details nor has any expertise. It is noteworthy that none of the other physicians who attended Ms. M. since this accident suggested that any of her difficulties might be due to chronic pain.

Ms. M. also relied on Dr. E.R. Blackman, who provided a DAC report in January, 1996 in which he noted a soft tissue strain of the low back, and concluded that she was disabled from her work because of the accident. There are no further reports from Dr. Blackman, but Dr. Offierski, an orthopod retained by Pilot, opined in October 1995 that Ms. M. was able to return to work. Dr. Offierski stated that her discomfort was intermittent and moderate, and that there was no evidence of any traumatic injury to her spine.

Ms. M. was referred to the Maximum Recovery Institute by her chiropractor for an active exercise program. On February 15, 1996, the Clinic Director, Dr. Diakow, reported that she exhibited "a lack of motivation and some attitudinal problems." In a medical/rehabilitation DAC prepared in April, 1996, Dr. J. Gleddie (a chiropractor) and Ms. V. Mattucci (a physiotherapist) found "no objective evidence to suggest any ongoing pathology to substantiate the chronicity of her symptoms." They recommended that chiropractic treatments be terminated and advised that Ms. M. continue in her exercise program for a further six to eight weeks. Although it was beyond the scope of their examination to determine her ability to return to work, they recommended that Ms. M. "gradually return to her employment as a registered nurse at Grandview Lodge."

Pilot continued to pay IRBs until January, 1997, when it received a DAC report from Dr. R. Josefchak, who advised that Ms. M. was disabled not from this car accident but because of an unrelated incident in November, 1996, in which she fractured her right ankle. He stated that Ms. M.'s back problems were a "minor" consequence of the car accident, and provided only a "minor" degree of functional limitation, whereas the "majority" of her disability related to her recent ankle fracture.⁶

Ms. M. also referred to Dr. C. Rogers, a physician in New York whom she consulted while visiting her father. Dr. Rogers completed medical forms in March, 1997, for Canada Pension Plan and Welfare in which he diagnosed "significant disc disease"⁷ and opined that Ms. M. was disabled from her work. But where the report requests a prognosis, he responded that it was "fair," and added that he "would defer" to the opinion of an orthopaedic specialist. In a later report, dated October 27, 1997, Dr. Rogers noted that a CT scan revealed bulging at several sites of the lumbosacral spine. He opined that Ms. M. was not able to work because of her back problem and needed to be seen by a neuro-surgeon.

I do not place much weight on Dr. Rogers' opinion. First, it is not clear that he was aware of the extent of her pre-existing back problems.⁸ Nowhere did he comment on the relative contribution of this accident to her condition. Second, he relied heavily on the CT scan in concluding that Ms. M. was disabled. But a spine abnormality is not, in itself, indicative of function. Moreover, in this case, I do not believe that the scan provides much support for his opinion. It was performed in January, 1997 and reveals "mild" bulging at L3-5, and focal bulging at L5-S1. There was minimal sclerosis and spurring of the facet joints. After reviewing the scan, other assessors were reluctant to connect Ms. M.'s problems to the findings in the CT scan. Dr. Josefchak stated:

The radiological findings...[indicate] signs of mechanical dysfunction or arthrosis within the lumbar spine. This is particularly evident by the narrowing of the facet joints. These changes indicates [sic] longstanding arthritic changes at this level.

[my emphasis]

Dr. E. Klimek, a neurologist, performed a DAC assessment in August, 1997, and reported:

The CT Scan demonstrates radiologic abnormalities that do not correlate with physical findings at this time. These types of X-Ray findings are seen in the range of normal asymptomatic individuals referred for other reasons for examination. MRI scans reveal asymptomatic individuals had disc bulges in 52% of scans...

Dr. Klimek concluded that "the CT scan of the lower back does not reveal any evidence of fracture or significant disc herniation." Any functional limitations were "voluntary."

I have discussed several weaknesses in the medical evidence relied upon by Ms. M. I also was not impressed by Ms. M.'s testimony. She tended to misattribute her problems to events which, in my view, are not logically related to this accident. For example, she blamed her ankle fracture, which occurred in 1996, on this accident. She stated that she fell down "because of numbness" in her legs, but there is no reliable medical evidence that that is a consequence of this accident.

She also believes that this accident is part of a conspiracy to harm her. Dr. Klimek, who is also certified by the American Board of Psychiatry, noted that Ms. M. believes that this accident is part of a plot involving Paul Bernardo, the man convicted of several rapes and murders in her community:

She relates that in 1992 it "all became too much" when she began noticing certain unusual events. She developed "problems with her heart" in 1992 and stopped going to work. She states that she had "Largactil" found in her bloodstream because someone, possibly a coworker, had administered it to her unknowingly or "dumped" it on her.

She began noticing "Bernardo" shortly thereafter. [examples follow]

... She indicates that the driver of the vehicle in 1995 that struck her car did so intentionally and was in some way part of this group around Bernardo...

In her testimony at the hearing, Ms. M. denied using the word "plot" in her conversation with Dr. Klimek. But she asserted that because the driver of the other car [allegedly] has a record of convictions for sexual assault, it is "very logical" that he is "connected" to Bernardo. She believes that she has been stalked by Bernardo and the other driver deliberately struck her as part of this scheme. She thinks that there "could be a connection" between Bernardo and Susan Nelles, the nurse who was initially held responsible but later exonerated in the death of several infants at the Sick Children's Hospital in Toronto. She acknowledges that because of a diagnosis of "paranoid delusions" she was off work for much of 1993 and 1994:

I wasn't moving too fast, was waiting to see where people would be, if they were in the community loose or if they were going to be incarcerated.

Although Ms. M. does genuinely appear to be a deeply troubled individual, I am not persuaded that her difficulties can be linked to this accident in any significant way. I find that this accident has not disabled her from her pre-accident employment for any period beyond January 8, 1997, and therefore her claim for IRBs is disallowed.

Entitlement to the cost of Vocational Training

Although Ms. M. advised that she was claiming the cost of vocational training, she adduced virtually no evidence in support of that claim. In any case, I have found that this accident does not prevent Ms. M. from resuming her employment as a nursing supervisor. I therefore do not believe that she requires vocational training in order to qualify for other employment.

Order:

1. Ms. M. is not entitled to recover IRBs for any period beyond January 8, 1997.

2. Ms. M. is not entitled to recover funds for vocational training.

August 5, 1998

Deena Baltman

Arbitrator

Date

Hearing:

The hearing was held in Welland, Ontario, on July 7, 1998, before me, Deena Baltman, Arbitrator.

Present at the Hearing:

Applicant:

C.M.

Pilot's

Grant Black & Andrew Richardson

Representatives:

Barristers and Solicitors

Witnesses:

C.M.

Exhibits:

Exhibit 1

Joint Medical Brief

Exhibit 2

Clinical note from Medemerg Walk-In Clinics dated August 17, 1995

Exhibit 3

Portion of Dr. Refling's clinical notes

Exhibit 4

Grandview Lodge records

Footnotes

1. 1Payable under the 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 and 781/94.
2. 2Exhibit 3, 5th page
3. 3Exhibit 1, Tab 1B
4. 4Exhibit 2
5. 5Exhibit 1, Tab 2E
6. 6Exhibit 1, Tabs 9A & 9C
7. 7Exhibit 1, Tab 10F
8. 8His report of March 24, 1997 refers to a previous car accident but does not indicate any related injuries. (Exhibit 1, Tab 10F)