Neutral Citation: 1998 ONICDRG 49, 1998 ONFSCDRS 49

FSCO A96-000486

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

PHYLLIS WORTHMAN

Applicant

and

AXA INSURANCE (CANADA)

Insurer

DECISION

Issues:

The Applicant, Phyllis Worthman, was injured in a motor vehicle accident on January 18, 1995. She applied for and received statutory accident benefits in the form of weekly income replacement benefits from AXA Insurance (Canada) ("AXA"), payable under the Schedule.¹AXA terminated weekly income replacement benefits on January 4, 1996. The parties were unable to resolve their disputes through mediation, and Mrs. Worthman applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Is Mrs. Worthman entitled to receive a weekly income replacement benefit from January 5, 1996, and ongoing pursuant to section 7 of the Schedule on the basis that she suffers a substantial inability to perform the essential tasks of her employment?

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

Result:

1. Mrs. Worthman is entitled to receive a weekly income replacement benefit from January 5, 1996, and ongoing pursuant to section 7 of the Schedule.

2. Mrs. Worthman is entitled to interest on any outstanding amounts pursuant to section 68 of the Schedule.

3. Mrs. Worthman is entitled to her expenses pursuant to section 282(11) of the Insurance Act and section 73 of the Dispute Resolution Code.

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on April 1, 2, 3, and 4, June 17, 18, 19, 25, and 26, July 2, 3, and 4, August 14 and 15, and September 8, 1997, before me, David Evans, Arbitrator. Written submissions totalling some 200 pages were provided by the end of December 1997.

The lists of those present at the hearing, the exhibits and the witnesses are set out in the Appendix.

Evidence and Findings:

On the evening of January 18, 1995, Phyllis Worthman played bingo in a hall north of Toronto until her husband, David, picked her up. They drove south on Jane Street and stopped at Steeles Avenue, planning to turn right. A car whose driver had already caused another accident a few minutes earlier hit them, backed up and drove off. The Worthmans testified that the impact forced their car forward by several feet. Mrs. Worthman testified that on impact the back part of her seat hit her lower back.

The force of the impact was a matter of dispute, as there was minimal damage to the rear of the Worthman vehicle, and the other witnesses did not see how far forward the car was thrown. However, their evidence was consistent with at least some impact on the Worthman vehicle. I find that Mrs. Worthman was involved in a collision of some impact.

Mrs. Worthman's husband, David, testified that the stiff neck he felt after the accident did not cause him to take any time off work. Mrs. Worthman testified that she did not immediately complain of low back pain because her long history of such pain had inured her to it, but the next day she felt more intense low back pain, and as well she had a headache and neck discomfort. The headache lasted only a short time, and the accident-related neck discomfort had resolved by April 1995, but the low back pain continued and became worse. Mrs. Worthman attempted to keep performing the duties she had performed since April 1, 1981, as a superintendent of seven 11-apartment buildings in a Wilson Avenue complex. However, on April 1, 1995, her salary was reduced when she stopped working other than to collect rent, and she started receiving weekly income replacement benefits of $231.56.

In September 1995, AXA sent Mrs. Worthman for an insurer's examination to Dr. Paul Grant, who reported in October 1995 that Mrs. Worthman was no longer substantially disabled from her employment. AXA notified Mrs. Worthman that they would end her weekly benefits unless she made a timely written request for an assessment at a designated assessment centre. Mrs. Worthman did so, and AXA arranged the assessment for January 4, 1996. However, on the advice of counsel, Mrs. Worthman then refused to attend the assessment and applied for mediation. AXA terminated her benefits because of that refusal.

Pre-Accident History:

Mrs. Worthman testified that she has had ongoing back and leg pain. Thus, for years she has not been able to climb stairs using the foot-over-foot method. By the fall of 1994 her low back was constantly painful with daily spasms, yet she was able to continue working. Her testimony that she continued to work was supported by other witnesses, and indeed the medical reports show that, on several occasions before the accident, Mrs. Worthman told her doctors that she continued to work as a superintendent.

In November 1971, Mrs. Worthman fell backwards about three feet off a ladder onto her tail bone, leading to back problems and a WCB claim that lasted several months. In 1976, she had a two-level chymopapain injection in the low back, and in June 1977, Dr. H. Schutz of the Toronto Western Hospital treated the same area by conducting a two-level laminectomy at L2-3 and L3-4 and a discotomy at L3-4.

As a result of a motor vehicle accident on March 6, 1984, Mrs. Worthman injured her neck, aggravated her pre-existing right knee and lower back problems, and suffered headaches. These injuries at first completely and later partially disabled her from her work as a superintendent for approximately a year.

Dr. Arnold Ein, a family doctor, has been treating Mrs. Worthman since the early 1970s. By 1990, Dr. Ein was injecting Demerol to control the back pain and Gravol to prevent nausea. In 1992 and 1993 he suggested retirement; in June 1993, Mrs. Worthman even contemplated reviving her 1971 WCB claim before abandoning it. Dr. Ein testified that Mrs. Worthman had periods of short-term exacerbation, such as from the beginning of March to the beginning of April 1994, when he gave her Demerol injections on four out of five visits. By that point he was prescribing Amitriptyline to treat her depression and insomnia and 100 Tylenol III tablets every two weeks to treat her pain.

Mrs. Worthman has had problems with arthritis in her hands, shoulders and knees, especially in her right knee. Dr. Norton Lithwick, orthopaedic surgeon, concluded in 1984 that some wear and tear in the knee joint was likely although not certainly a source of her knee pain and, in April 1985, that Mrs. Worthman had osteoarthritis in her right knee, right big toe and left ankle.

Dr. Lithwick has also treated Mrs. Worthman's back. On October 13, 1992, after a myelogram revealed L4-5 degenerative disc disease, he removed the disc at the L4-5 level that was impacting the nerve root. Mrs. Worthman saw him again in the spring of 1993 because her back and left leg were causing variable pain. Dr. Lithwick testified that the kind of bilateral flank pain she then reported to him suggested arachnoiditis (scarring of the connective tissue). On June 10, 1994, he suggested as a last step an epidural injection of cortisone, which Dr. Jennings, an anaesthesiologist, performed on October 7, 1994. (Despite the injection, between November 11, 1994, and January 13, 1995, Dr. Ein issued three Tylenol prescriptions and provided three Demerol injections.)

Mrs. Worthman has also been diagnosed with rheumatoid arthritis, as Dr. Abraham Chaiton concluded in 1988. Dr. Chaiton testified that he is a specialist in rheumatology and has been a disability assessor for DACs since 1995. He has managed Mrs. Worthman for her underlying rheumatic condition of rheumatoid arthritis, which is his area of specialty and the most significant condition for which he is treating her. Over the years he noted various flare-ups and remissions of her rheumatoid arthritis, such as on June 13, 1991, when he injected Mrs. Worthman's left shoulder joint. (That same year, he noted that orthotics for Mrs. Worthman's foot deformities, which he felt likely caused much of her knee discomfort, accentuated her back pain.) In April 1994, Dr. Chaiton took Mrs. Worthman off her Methotrexate medication to relieve a rash, as her rheumatoid arthritis appeared to be under control. He returned her to the medication when the rheumatoid arthritis flared up again in the summer, and by November 1994 he wrote that her right shoulder and right knee had much improved. A virtually identical pattern followed in 1995.

Mrs. Worthman had some emotional problems by that point. She testified that she had been looking after her sister with Down's Syndrome since 1980 and that her father was sick: on a bad day, after trying to cope with her pain and her sister and her tenants, she was ready to give up. She usually felt better after talking with Dr. Ein.

Essential Tasks

Mrs. Worthman testified that in general from 1981 to 1995 she carried out the same cleaning and inspection tasks in the seven 11-apartment buildings in the Wilson Avenue complex. Paved parking areas, lawns and walkways connect the buildings, and flights of steps connect the various levels in them. She estimated that 80 percent of her time was spent walking and climbing the stairs.

Mrs. Worthman's initial step in proving her claim is to set out the essential tasks of her employment. The submissions of neither counsel were helpful. Counsel for Mrs. Worthman submitted that all tasks were essential, even if they only occurred a few times a year, such as weeding the lawns, cleaning up after a sewer backup, or taking the pest control technicians to the apartments. Counsel for AXA submitted that Mrs. Worthman's only essential task was to walk around the buildings, as her husband could have done any of the necessary work when he was home. The problem in determining the essential tasks is heightened where, as in this case, the couple shared aspects of the job. Mrs. Worthman testified that her husband had occasionally shared some of her cleaning tasks on weekends and, less frequently, in the evenings. Mr. Worthman had also performed her duties when she was incapacitated due to surgery.

Furthermore, as time went by, some tasks were reduced. Ruth Magder, one of the part-owners, testified that in 1992 or 1993 her brother, the other part-owner, hired a man to wash and wax the floors, landings and steps once a month because he felt the job was too heavy for Mrs. Worthman. However, she continued to clean them on an as-needed basis. Mrs. Worthman testified that in the latter part of 1994 her husband worked as much as she did in the halls and did more snow clearing of the walkways. She did not cut the lawn in that period, although she continued to water and weed it.

In these circumstances, I do not find that every single task Mrs. Worthman ever performed was an "essential task" where the employer showed flexibility in assigning tasks and where the spouse performed some of them. Accordingly, I exclude the less frequent tasks. I find that Mrs. Worthman's essential tasks were collecting rent, cleaning the halls and stairways by mopping and sweeping, inspecting machinery in the furnace and laundry rooms, and picking up and removing garbage.

Regarding her daily tasks, Mrs. Worthman testified that inspecting the furnace and the hot water tank involved bending to nearly floor level. She would carry one or two garbage bags from the laundry rooms to the six-foot high dumpster and lift them over her head to put them in. She also put into the dumpster any garbage on the lawns that she had picked up, any bags of garbage that tenants had left on the lawn or sidewalk, and any garbage that had spilled out of the dumpster when it was emptied. Most days she would have to sweep some part of each building. Each day, in three of the buildings, she would mop two or three hallways and sometimes the stairs as well. She would fill the pail in the laundry room and carry the mop and bucket up to the area to be mopped. Towards the end of 1994 she paced her mopping, as it caused her pain in the lower back, so she could only do a certain amount before resting.

Post-Accident History:

Mrs. Worthman testified that her low back has continued to be her most significant complaint. The pain in the left leg has also worsened and now extends to the ankle, which she never experienced before the accident (although some medical records suggest otherwise). The pain to her left ankle differs from before the accident, in that it feels like a sharp object scraping down her leg to her ankle. The pain in the buttocks now is more severe than before the accident and makes her scream when she has to apply pressure for bowel movements. In March 1995 she started using a cane that Ross Knee, a tenant, gave her to relieve the pressure on her back. She subsequently developed carpal tunnel syndrome, which was treated operatively in February 1996. Dr. Chaiton testified that the most likely cause of the syndrome was the cane straining the wrist tendons. She can walk 3 to 5 minutes without the cane and 15 to 20 minutes with it. In January and March 1997 she was videotaped walking a short distance without the cane but otherwise was videotaped supporting herself with it or with a shopping cart. The investigators testified that it appeared Mrs. Worthman was applying force to the cane to support herself.

Dr. Ein testified that when he first saw Mrs. Worthman after the accident on January 20, 1995, she had increased spasm of the bilateral spinal muscle area with range of motion restricted to 50 percent of normal. Because she wanted to keep on working, they agreed to a 50 percent reduction in her work. Although pre-accident Mrs. Worthman had all the ailments he listed in his Health Practitioner's Certificate dated February 10, 1995, namely disc herniation, chronic pain and post-traumatic stress disorder, they were all worsened by the accident. In the Certificate, Dr. Ein indicated that Mrs. Worthman had increased lumbar spinal spasm, that she "has had injury. — complicated back history with surgery and many complications aggravated by MVA," and that the most severely affected area was the lower back followed by the neck. On March 24, 1995, as her back pain had continued to worsen, he told her to stop working other than to collect rent. This was the first time he had told her to actually stop working as opposed to taking time off. It appears that he may have suggested in the past that she apply for short-term disability, such as when she considered reopening the WCB claim in June 1993. Mrs. Worthman became angry at her circumstances and remains so. Her pre-accident depression became more pronounced and has not changed greatly since April 1995. In a report of January 7, 1997, Dr. Ein noted that she had gained weight partly from her depression and partly from her inactivity, which has further complicated her back problem.

Dr. Chaiton testified that on February 21, 1995, her first visit with him after the accident, Mrs. Worthman had considerable low back pain and spasm and was complaining of radicular pain into her legs. The spasm appeared to be involuntary and greater than before the accident. He noted that her arthritis was not worse. Since February 1995 there has been no appreciable improvement. In April 1995 Dr. Chaiton suggested that she stop the Methotrexate until her rash cleared. She resumed the medication after a flare-up of her knee pain in early August, and by the visit of September 26, 1995, it had improved. Mrs. Worthman testified that she has no more problems with her knees now than before the accident.

Disability

Mrs. Worthman testified that in general the pain down her back and her legs prevents her from performing her tasks, even if they only involve walking. She has not attempted some activities, such as waxing the floors or pushing the deck broom, at all. In January 1995, she may have picked up some garbage off the grounds and mopped the halls. She last checked the furnace and laundry rooms in February 1995 and stopped because of her difficulty in bending over to check the machines and the pilot lights. At the end of January 1995, her husband started doing most of the heavy work, as she could not even inspect the buildings. Until March 1995 she was sometimes able to sweep and to remove the garbage from the laundry rooms. Once she started to use a cane, she was prevented from performing many of her previous activities such as washing walls and floors.

Dr. Ein testified that Mrs. Worthman is severely restricted in her ability to perform household and work tasks and that her condition had not changed. Her restricted range of motion, pain and spasm affect virtually all her essential tasks. He considered that the accident had negatively affected her life, as she had a good work ethic and needed to work for psychological reasons. The accident "tipped her over," materially disabling her from work, in that she was unable to function after the accident.

Dr. Chaiton testified that Mrs. Worthman's rheumatoid arthritis is presently under control. Absent the accident, he would have expected that her rheumatoid arthritis would have continued without any severely-disabling deterioration. Almost all of the activities she would perform as a superintendent would cause an inordinate strain on her lower back and knees and would increase her risk of getting worse.

Causation:

Evidence of Mrs. Worthman

The tenants called by Mrs. Worthman gave evidence consistent with her decreased activity in the weeks immediately following the accident. Ross Knee testified that he has been a tenant at the complex since 1987. After 1990, when he stayed at home during the day because of a work-related injury, he observed Mrs. Worthman performing most of the tasks she had described in her testimony. Mrs. Worthman told him of her accident a few days after it happened. He met her as she was walking while bent over and looking as if her back was bothering her. Shortly afterwards, he gave her the metal cane she now uses. He has not seen her do anything more than collect the rent since the accident, and, to him, she appears to be getting worse.

Eva Muise, Mrs. Worthman's sister, and Jeannette Muise, her niece, testified that Mrs. Worthman has been much less active or even totally inactive in the recreational activities they once shared before the accident, such as shopping and going to lawn sales. Eva Muise testified that she had seen Mrs. Worthman on January 16 and 17, 1995, when she appeared normal, but three days after the accident she appeared to be in a lot of pain, had a stiff neck, and had difficulty standing up. Her condition worsened over the ensuing months.

All the doctors agreed that Mrs. Worthman's pre-existing conditions would have rendered her more vulnerable to trauma in an accident. Dr. Chaiton testified that the Prednisone he has used to treat her rheumatoid arthritis is a steroid that suppresses the immune system and weakens muscle tone and strength, so it would have a very significant ongoing effect in impairing the back muscles. As she had been taking it for several years, an accident would affect the already-weakened muscles and further slow down healing.

Dr. Ein testified that Mrs. Worthman's continuing problems from before the accident are obesity, depression, osteoarthritis, degenerative disc disease, and weak muscles and ligaments in her back. However, although Mrs. Worthman would have deteriorated over time, she would not have done so to nearly the same extent, or as quickly, if not for the accident, and her degenerative conditions would not in themselves have disabled her. His records show that her visits and injections related to her musculoskeletal problems increased after the accident. The doctors also testified that Mrs. Worthman evidenced a strong work ethic by working up to the time of the accident despite her pre-accident conditions.

Evidence of AXA

Dr. Lithwick appears to have been called by the Insurer mainly for his post-accident findings. Dr. Lithwick testified that on June 15, 1995, Mrs. Worthman complained of low back and posterior flank tenderness, although he had only gently touched her skin, and of pain in both legs when he performed a test that should not have caused such pain. He concluded that she had recurrent low back pain with a significant "functional overlay," which he defines as a lack of organic findings and a lack of veracity in relation to the apparent complaints.

However, I note that Dr. Lithwick had observed apparent over-reactions earlier without making conclusions against Mrs. Worthman. For instance, in April 1985, while holding Mrs. Worthman's leg and knee to stress the knee's collateral ligaments, his thumbs over her shin gave her more trouble than the knee itself, raising questions about her pain threshold. He had also obtained a non-organic test result in 1992, yet went on to perform surgery on Mrs. Worthman. Accordingly, I am not prepared to discount Mrs. Worthman's claims solely on the basis of this one visit in light of her earlier history and her demonstrated work ethic.

Dr. Paul Grant

On September 13, 1995, Mrs. Worthman attended at AssessMed Inc. where Dr. Paul Grant, general practitioner, conducted a Work Capacity Evaluation.

Dr. Grant testified that in his opinion Mrs. Worthman has true pain but an exaggerated perception of it and its impact upon her. The probability of more than a minor soft tissue injury resulting from the accident was minimal, as there was no evidence of fracture or serious injury. It was not his experience that a vehicle's occupant can suffer a severe injury while the vehicle itself sustains little damage. He found no objective evidence of permanent deterioration attributable to the accident. He felt that by September 1995 there was no significant change between her pre- and post-accident status. He concluded that she was physically capable of returning to whatever she did before the accident, however onerous her work. He believes one cannot have true disability in the absence of objective signs, and wrote in his report that Mrs. Worthman must understand that "pain does not necessarily mean harm" and that "pain does not equate to disability."

I do not lend much weight to this report and its conclusions for several reasons. I was concerned by Dr. Grant's contradictory testimony: he testified that Dr. Ein's medical chart was relevant and that he carefully read it; however, after failing to decipher the chart when asked, he then testified that he skimmed through it without obtaining a translation. (He referred to the attempt to read it as a "low-yield" exercise.)

Furthermore, Dr. Grant did not appear objective, in that he interpreted problematic items against Mrs. Worthman without considering other alternatives. For instance, Dr. Grant interpreted apparently nonsensical responses by Mrs. Worthman regarding her current abilities as a "classic discrepancy": a perfect example of an inconsistent report by a patient. In fact, the nurse who conducted the testing for the report testified that errors in computer input led to those inconsistent results.

Dr. Grant also did not include in the report elements in Mrs. Worthman's favour. For instance, although Dr. Grant testified that a number of factors such as her osteoarthritis and rheumatoid arthritis would have rendered Mrs. Worthman more vulnerable, there were no references to them in his report.

The report contains a number of errors, such as the suggestion that Mrs. Worthman was able to climb stairs using the "foot-over" method, arising from the information obtained by the testing staff that was inserted directly into the report without any apparent correction for changed circumstances. Some errors arose through other causes. For instance, Dr. Grant testified that his report is in error where it states that Mrs. Worthman's heart rate never rose above baseline, as the raw data for the stooping test shows that Mrs. Worthman's heart rate jumped to 140 within a few seconds because of her back pain. The apparent explanation, as Dr. Grant testified, is that he did not personally review all the testing.

On January 10, 1997, Dr. Grant wrote:

Although Mrs. Worthman may complain of significant symptomatology, it is my well considered medical opinion that this symptomatology relates to the pre-existing underlying degenerative conditions and their natural progression; they are not related in any manner to the motor vehicle accident of January 18, 1995.

Dr. Grant testified that he had no objective data on which to reach this opinion other than the "natural progression" of the conditions. Dr. Chaiton testified that, on the contrary, Mrs. Worthman's rheumatoid arthritis is under control. I note that during the same post-accident period during which Mrs. Worthman claims that her back was worsening the rheumatoid arthritis improved to the point where Dr. Chaiton felt he could safely take Mrs. Worthman off the Methotrexate in order to treat her rash. I therefore find that any worsening during this period was not tied to the continuing degeneration of the rheumatoid arthritis. In fact, the rheumatoid arthritis appears to be so under control that Dr. Frank Lipson (see below) even disputed its presence when he examined her in March 1997.

Finally, I do not accept Dr. Grant's position that an applicant cannot be disabled without objective signs. See, for instance, Arbitrator Makepeace's summary of principles in Quattrocchi and State Farm Mutual Automobile Insurance Company,³ in which she noted that an insured may be found entitled to benefits because of disabling pain, despite there being no impairment that can be objectively confirmed.

I find that Dr. Grant did not read relevant material that he claimed he had, did not report on findings of "true pain" that Mrs. Worthman demonstrated during the testing, and interpreted illogical entries against Mrs. Worthman instead of seeking an explanation that he could have readily received from his nurse had he asked. Accordingly, I prefer the evidence of Drs. Ein and Chaiton over that of Dr. Grant.

Dr. Frank Lipson

Dr. Lipson, specialist in internal medicine, physiatry and rheumatology, conducted an Insurer's Medical Examination of Mrs. Worthman on March 14, 1997. Dr. Lipson wrote that Mrs. Worthman walked to the examining room with a minor limp while barely using her cane as an assistive device and that she was able to sit 35 to 40 minutes without apparent discomfort. He found no evidence of rheumatoid arthritis or osteoarthritis other than psoriatic changes in her nails. He saw little evidence of muscle spasm in her lower back when she walked and none when he examined it. Mrs. Worthman had unusual feelings and non-specific sensory motor changes that had no organicity. The range of motion of her cervical spine and arms was normal. Elevation of her left leg caused discomfort: Dr. Lipson testified that when he moved her leg she started to cry and the examination ended.

Dr. Lipson testified that he would have expected Mrs. Worthman's symptoms to have peaked within the first 8 to 10 days of the accident and to have resolved within three months. He also testified that he had no doubt in his mind that any deterioration after February 10, 1995, was completely coincidental. Thereafter, she would have returned to her pre-existing pattern of periodic exacerbations of her underlying symptomatology with little or no organic basis for her complaints. Dr. Lipson felt that nothing related Mrs. Worthman's continuing problems to the accident. If she was able to work for one or two months after the accident then there was no accident-related reason for her to stop. Patients do not continue to deteriorate from minor injuries, as such injuries are not progressive.

Dr. Lipson did not include in his report certain items that were in Mrs. Worthman's favour. He testified that although he did not mention it in the report he was aware that both Dr. Ein and Dr. Chaiton found significantly increased muscle spasm. Similarly, Dr. Lipson did not write in his report that Mrs. Worthman did not want to bend and that she was restricted in forward and lateral flexion and in rotation; he testified that this omission was a significant oversight in his report. (He testified that he was not aware when he wrote the report that Dr. Ein and Dr. Chaiton had also observed increased restriction of motion.) He did not mention that Mrs. Worthman's pre-existing conditions rendered her more vulnerable.

In his conclusion, Dr. Lipson wrote that Mrs. Worthman is in the same state that she was before the accident. However, he testified that his impression of her pre-accident work was as set out at the bottom of page 3 of his report, where he wrote that Mrs. Worthman "is capable of doing the financial collections at this stage and some of the minor work."

In considering Dr. Lipson's report, I find that the omissions are significant. Furthermore, his conclusion is based on a limited view of Mrs. Worthman's pre-accident work that is closer to what Mrs. Worthman currently does. I find that the essential tasks she continued to perform before the accident constituted more than the minor work Dr. Lipson refers to. Finally, Dr. Chaiton is an equally qualified rheumatologist who has followed Mrs. Worthman for years, and he did not present himself as her advocate at the hearing. Accordingly, I prefer his findings over those of Dr. Lipson.

Conclusion:

Weekly Income Replacement Benefits

Pursuant to section 7(1) of the Schedule, Mrs. Worthman must prove the following, on a balance of probabilities:

1. She sustained an impairment, meaning a loss or abnormality of psychological, physiological or anatomical structure or function, as a result of the accident;

2. This impairment causes her to suffer a substantial inability to perform the essential tasks of her employment.

Mrs. Worthman's position is that the accident worsened her back pain to the extent that she is impaired from carrying out her essential tasks. This impairment even led to ancillary problems, such as the carpal tunnel syndrome in her wrist that was treated by surgery.

Arbitrator Miller stated in Malabanan and Canadian General Insurance Company⁴ that an important element in discharging the burden of proof under section 7(1) is showing that the motor vehicle accident "significantly or materially contributed to an insured person's disability."

AXA submitted that, since Mrs. Worthman continued working after the accident, she did not suffer an impairment. However, I find that although she attempted to keep on working, she was unable to perform many of her essential tasks and performed fewer of those she did as time went by. Furthermore, neither Dr. Lipson nor Dr. Grant denied that Mrs. Worthman initially suffered an impairment. Indeed, the medical witnesses agreed that Mrs. Worthman's many pre-existing conditions, such as the osteoarthritis in her knees, the rheumatoid arthritis, the lumbar degenerative disc disease, the obesity, the earlier surgeries and chymopapain injections, and the medications such as prednisone would have rendered her more vulnerable to injury and to increased symptoms from any trauma.

Furthermore, I find that there was a strong temporal connection between the accident and the onset of Mrs. Worthman's increased back pain, a connection supported by the contemporaneous onset of headache and neck pain. I find that Mrs. Worthman's visits with and injections by Dr. Ein markedly increased after the accident. I find that Mrs. Worthman was able to work and ambulate without a cane prior to the accident, whereas now she requires one, as seen by the investigators. I find that the accident significantly or materially contributed to her disability. Accordingly, I find that Mrs. Worthman suffered an impairment in the accident.

As to the effect of the impairment on Mrs. Worthman's ability to carry out her essential tasks, I find that many of these tasks would require stooping. The testing at AssessMed caused Mrs. Worthman to yelp in pain and her heart rate to jump. I do not find it reasonable that Mrs. Worthman should have to endure that kind of pain in order to carry out her essential tasks. I find that Mrs. Worthman requires her cane to walk, yet it would be impossible for her to perform her tasks such as sweeping, carrying pails and mopping with a cane. Accordingly, I find that Mrs. Worthman suffers a substantial inability to perform these essential tasks. Therefore, I find that Mrs. Worthman remains entitled to weekly income replacement benefits.

Expenses:

Mrs. Worthman was successful in her claim. Accordingly, I grant her the reasonable expenses of this hearing. If counsel cannot agree, I point out that, in setting the expenses, I would consider such matters as the length of cross-examination, the exploration of areas of little or no relevance, and the success or lack thereof of various motions brought during the proceedings.

Order:

1. Mrs. Worthman is entitled to receive a weekly income replacement benefit from January 5, 1996, and ongoing pursuant to section 7 of the Schedule.

2. Mrs. Worthman is entitled to interest on any outstanding amounts pursuant to section 68 of the Schedule.

3. Mrs. Worthman is entitled to her expenses pursuant to section 282(11) of the Insurance Act and section 73 of the Dispute Resolution Code.

October 7, 1998

David Evans

Arbitrator

Date

APPENDIX

Present at the Hearing:

Applicant:

Phyllis Worthman

Mrs. Worthman's Representative:

David S. Wilson

Barrister and Solicitor

AXA's Representative:

David Murray

Barrister and Solicitor

Witnesses:

P.C. Alan Cooke

Phyllis Worthman

Ross Knee

Dr. Arnold Ein

David Worthman

Ruth Magder

Sharon Beer

Dale Beer

Fatima Pathan

Michael Dileo

Dr. Abraham Chaiton

Deborah McBride

Jeanette Muise

Eva Muise

Edith Otvos

Arlene Gladstone

Dr. Norton Lithwick

Dr. Paul Grant

Madeline Melo

Dr. Frank Lipson

Anna Tsaggarelis

Bruce Torbet

Chris Hammer

Twenty-six exhibits were filed in the hearing.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
3. 3(OIC A-006854, September 29, 1997)
4. 4(OIC A96-000084, September 9, 1996), approved on appeal (P96-00073, February 4, 1998)