Neutral Citation: 1998 ONICDRG 77, 1998 ONFSCDRS 77

FSCO A97-001305

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CARMELA MONDELLI

Applicant

and

CANADIAN GENERAL INSURANCE GROUP

Insurer

DECISION

Issues:

The Applicant, Carmela Mondelli, was injured in a motor vehicle accident on July 3, 1993. She applied for and received statutory accident benefits from Canadian General Insurance Group ("Canadian General"), payable under the Schedule¹ Canadian General terminated weekly income benefits on July 3, 1996. The parties were unable to resolve their disputes through mediation, and Mrs. Mondelli applied for arbitration at the Financial Services Commission of Ontario² 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 beyond July 3, 1996?

2. Is the Applicant entitled to a special award?

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

Result:

1. The Applicant is entitled to weekly income benefits, plus interest, from July 3, 1996 and ongoing.

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

3. The Applicant is entitled to her expenses incurred in the hearing.

Evidence and Findings:

Mrs. Carmela Mondelli was a 46-year-old, working mother of two grown children at the time of the motor vehicle accident. On Saturday, July 3, 1996, Mrs. Mondelli was a passenger in the family car when the car was struck from behind. The back bumper was damaged and the seat in which she was sitting broke, throwing her backwards. Mrs. Mondelli went to work on Monday, July 5, 1993, but began experiencing pain in her neck and left shoulder. That was her last day of work. She visited her family doctor on Tuesday, July 6, 1993 and began physiotherapy treatment. The pain spread to her right shoulder, and down her left arm to her left hand. Over time, the pain became more diffuse and widespread. At the hearing, Mrs. Mondelli testified that she suffers pain in her neck, both shoulders, down her left arm to her hand, down her left side, and down her left leg to the floor. She testified that she experiences the pain every day. It interferes with her sleep. She developed anxiety and at the time of the hearing was taking medications daily for depression, anxiety and pain.

The Insurer terminated weekly income benefits after 156 weeks³ on the basis that Mrs. Mondelli no longer suffered from any disability.⁴

Weekly Income Benefits:

In order to establish entitlement to ongoing benefits beyond 156 weeks, Mrs. Mondelli must establish that she suffers from an accident-related injury which continuously prevents her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience.⁵

Education, Training and Experience

Mrs. Mondelli was born in Italy and left school at the age of 10 to help support her family. She can read and write in Italian. She immigrated to Canada in 1972 at the age of 26 and married shortly afterward. She has two children, aged 20 and 17, at the time of the accident. Mrs. Mondelli entered the work force when her youngest child was two and a half. She worked for 11 years at Faberge, packing shampoo bottles into cartons. When she was laid off from that job, she found another job approximately one month later at Ashton Potter Ltd., as a postal stamp examiner. She had been working at Ashton Potter for approximately three and a half years at the time of the accident. Despite working outside the home for over 14 years, Mrs. Mondelli has limited English language abilities. She speaks Italian at home. While working at Faberge, her co-workers spoke Italian. At Ashton Potter, one of her co-workers spoke Italian, as did one of her supervisors.

It was not seriously disputed by the Insurer that, given Mrs. Mondelli's limited language skills, education, and training, the only work for which she is reasonably suited is factory work similar to the work she already performed, which requires little training and English abilities. Thus, for the purpose of this hearing, if I determine that Mrs. Mondelli is not capable of returning to factory work similar to the work she has already performed, then she satisfies the test for entitlement under section 12(5)(b).⁶

I heard no evidence about the factory work Mrs. Mondelli performed at Faberge, except that it involved packing shampoo bottles into boxes. However, I find that Mrs. Mondelli's job as a stamp examiner at Ashton Potter was relatively light factory work, and that if Mrs. Mondelli was not capable of returning to that job, she was not competitively employable.

Mrs. Mondelli described her duties as a stamp examiner. Her job consisted of picking up bundles of sheets of stamps, weighing between 10 to 20 lbs, from a skid and carrying them back to a table. She cradled the bundle in her left hand, picked up a sheet of stamps with her right hand, and visually examined them for defects. She sorted the sheets into two piles and returned them to the skid. It took approximately 15 minutes to inspect one bundle. She repeated these tasks for eights hours per day. Thus, this job requires the ability to work steadily for eight hours, lift between 10 to 20 lbs, sit for 15 minutes while inspecting the stamps, sort the stamps with the right hand, and to concentrate intently.

Mrs. Mondelli asserts that because of the constant pain in her neck and shoulders, she is incapable of performing that work, or any other type of factory work.

Chronic Pain

Has Mrs. Mondelli satisfied the evidentiary onus upon her to prove that the level of pain she is experiencing in her neck and shoulders effectively prevents her from returning to work?

Repeated examinations of Mrs. Mondelli's neck and shoulders revealed no abnormality or objective basis for her ongoing complaints of pain.⁷ Mrs. Mondelli exhibited poor effort during physiotherapy sessions, work-hardening programs and on functional capacity evaluations, because of her subjective perception of pain in her neck and shoulders.⁸ It is impossible to test a person's subjective perception of pain. However, in all the circumstances, I am satisfied that Mrs. Mondelli is experiencing ongoing pain in her neck and shoulders of a sufficient nature to prevent her from returning to the relatively light manual labour of stamp examiner, or other similar factory work.

Mrs. Mondelli's medical history prior to the motor vehicle accident was unremarkable. She had an uninterrupted work record of approximately 14 years. She did not miss any significant time from work because of accident or injury. Immediately after losing her first job at Faberge, Mrs. Mondelli obtained another job at Ashton Potter. Shortly after the accident, the company went into receivership, and subsequently reopened under new management, offering lower wages. The Insurer argued that Mrs. Mondelli was not motivated to return to work at a salary lower than the insurance benefits she was receiving, and that it was this lack of motivation, rather than any lack of ability, which prevented her from returning to work. I find that Mrs. Mondelli's uninterrupted work history indicates a strong motivation to work.

Since the accident, Mrs. Mondelli has not returned to any form of work. She testified that she spends her days performing her household chores with pacing and rest. Rosa Mondelli, her daughter, confirmed that her mother required help with the heavier chores. She also confirmed that she observed the tiredness in her mother's face after a difficult night, and that her mother often appeared to be in pain.⁹ There is no evidence that Mrs. Mondelli has engaged in any activity more strenuous than light housekeeping since the accident.

Dr. Ferlisi's clinical notes and records indicate that Mrs. Mondelli made consistent complaints of neck and left shoulder pain from the time of the accident.

Approximately one year after the accident, Mrs. Mondelli began to develop anxiety and difficulties sleeping.¹⁰ These symptoms are consistent with Mrs. Mondelli's complaints of chronic pain. Although Dr. Furlong, a psychiatrist conducting an Insurer Medical Examination in 1996, did not identify any serious anxiety or sleep symptoms, his interview was hampered somewhat by language difficulties due to the lack of an interpreter. I prefer the evidence from Mrs. Mondelli's treating physician and the Insurer's rehabilitation consultant that Mrs. Mondelli was complaining of anxiety and sleeplessness on a consistent basis. From December 1996, Mrs. Mondelli began seeing Dr. Gotkind, a psychiatrist, on a monthly basis for her ongoing complaints of anxiety and depression related to her chronic pain.¹¹ Dr. Gotkind prescribed anti-depressants and tranquillizers, which Mrs. Mondelli takes each evening.

Having regard to all the circumstances described above, I accept Mrs. Mondelli's evidence that she experiences daily pain in her neck and shoulders. While the individual job functions at Ashton Potter, considered separately, could be described as relatively light, overall, the job requires constant attention, speed and concentration. The action of sitting for 15 minutes, while scanning sheets of stamps puts a strain on the neck and shoulder and I am satisfied that, in light of Mrs. Mondelli's chronic pain in those areas, she would be unable to sustain that action over the course of eight hours. Mrs. Mondelli is effectively prevented from returning to full-time factory work similar to what she performed at Ashton Potter and Faberge. Given Mrs. Mondelli's limited English language skills, education and training, factory work is the only suitable employment for her. Accordingly, I find that Mrs. Mondelli has met the test for ongoing entitlement to weekly income benefits after 156 weeks.

In addition, Mrs. Mondelli is entitled to interest at the rate of two percent per month from the date each of the weekly payments was due.¹²

I note that since the accident, Mrs. Mondelli has developed other medical conditions which do not appear to be related to the accident. She was diagnosed to have mild bilateral carpal tunnel syndrome in both arms, in October 1994¹³ which was treated with splints. That condition did not appear to be disabling and improved over time.¹⁴ More than two years after the accident, Mrs. Mondelli began complaining of lower back pain¹⁵ Neither Dr. Ferlisi or Dr. Kirwin attribute the back pain to the motor vehicle accident.¹⁶ I heard no evidence from Mrs. Mondelli about this back pain and whether it contributed to her current disability. She was not cross-examined on this point. I conclude that, while Mrs. Mondelli does suffer from bilateral carpal tunnel syndrome and back pain, which may further disable her from working, the pain in her neck and shoulders alone, is sufficient to disable her from working.

Special Award:

The Applicant sought a special award on the basis that the Insurer's decision to terminate benefits on July 3, 1996 was unreasonable. Applicant's counsel argued that since the Insurer paid weekly income benefits until July 1996, it must have accepted that Mrs. Mondelli was incapable of returning to her job as a stamp examiner until that date, and the Insurer is estopped from challenging that issue. There was no evidence of any change in Mrs. Mondelli's condition after July 1996. Counsel argued that it should have been obvious that the only work that Mrs. Mondelli was suitable for was factory work, and therefore, if she was incapable of returning to her previous job, she was equally incapable of returning to any suitable employment. Further, Counsel noted that the Insurer's own rehabilitation counsellor recommended in June 1995 that Mrs. Mondelli be assessed for vocational retraining, in light of her continuing inability to return to factory work. Instead of offering vocational rehabilitation, the Insurer simply paid benefits to the three-year mark and terminated benefits.

I cannot accept the proposition that the Insurer is estopped from challenging the Applicant's medical condition prior to July 1996, simply because it paid weekly benefits until July 1996. The Insurer's medical evidence prior to July 1996 indicated that there was no medical basis for Mrs. Mondelli's ongoing complaints of pain. It was not unreasonable for the Insurer to test the credibility of Mrs. Mondelli's purely subjective perception of pain, or to wait until the three-year mark to do so. In the circumstances, no special award is payable.

Expenses:

In light of the outcome of this arbitration, I exercise my discretion to award Mrs. Mondelli her expenses of the arbitration hearing.

Order:

1. Mrs. Mondelli is entitled to weekly income benefits from July 3, 1996 and ongoing.

2. Mrs. Mondelli is entitled to interest at the rate of two percent per month from the date each payment became due.

3. Mrs. Mondelli is entitled to her expenses incurred in respect of the arbitration.

November 16, 1998

M. Kaye Joachim

Arbitrator

Date

Appendix

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on October 6 and 7, 1998, before me, M. Kaye Joachim, Arbitrator.

Present at the Hearing:

Applicant:

Carmela Mondelli

Mrs. Mondelli's Representative:

David F. Longley Barrister and Solicitor

Canadian General's Representative:

Doug Wright Barrister and Solicitor

Court

Reporter: Louce Almeida Rosenberger

Interpreter:

Marie Lecce

Omnicom

Witnesses:

Rosa Mondelli, daughter of the Applicant Carmela Mondelli, Applicant Dr. F. W. Furlong

Exhibits:

Nine exhibits were filed.

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
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. 3Technically, the Insurer paid benefits for 155 weeks, but the parties agreed that the only issue before me was entitlement to benefits after the 156-week mark, under section 12(5)(b).
4. 4Exhibit 1, Tab 24, Letter from the Insurer dated July 3, 1996, advising that benefits were terminated because "it appears you are no longer suffering from the disability for which benefits were being paid."
5. 5Section 12(5)(b).
6. 6The parties agreed that the case of Wigle and Royal Insurance Company of Canada, (OIC A-012312, January 12, 1996) at para 46 summarizes the proper approach to determining suitable employment. Initially, counsel for the Insurer argued that the Applicant must identify some jobs, other than the one she held at the time of the accident, for which she is reasonably suited, and then adduce evidence that she is not capable of performing those jobs. However, upon further questioning, counsel for the Insurer conceded that on the facts of this case, the only suitable work for Mrs. Mondelli was factory work, similar to the work she had done in the past.
7. 7Exhibit 1, Tab 10, Report of Dr. Imrie, October 29, 1993; Exhibit 9, Report of Dr. Imrie, January 28, 1994; Exhibit 1, Tab 17, Report of Dr. Lloyd, October 27, 1994; Exhibit 1, Tab 19, Report of Dr. Wright, August 25, 1995.
8. 8Mrs. Mondelli was discharged from Pro Motion Physiotherapy in July 1994, because she was very pain-focused and showed no functional improvement. She was discharged from a work-hardening program at Workable Centres in August 1994 because of poor effort and motivation and because she was pain-focused. During a functional abilities evaluation at Workable Centre in October 1994, Mrs. Mondelli demonstrated limitations due to subjective reports of pain. In May 1995, she was discharged from the Canadian Back Institute because of minimal improvement, due to her pain factors. The Insurer relied on these actions as an indication of Mrs. Mondelli's lack of motivation or effort. I find that Mrs. Mondelli's actions are consistent with her subjective perception of pain.
9. 9The Applicant advised that her husband was unable to give evidence because of illness, and I draw no adverse inference from his failure to testify.
10. 10Exhibit 1, Tab 25, Dr. Ferlisi's clinical notes and records. References to anxiety commenced in August 1994. Exhibit 7, Reports from Sibley & Associates, note complaints of insomnia from September 1994.
11. 11Exhibit 1, Tab 28, Report of Dr. L. Gotkind, June 20, 1998.
12. 12Section 24(4) of the Schedule.
13. 13Exhibit 1, Tab 15, Report of Dr. P. S. Tepperman, October 25, 1994.
14. 14Exhibit 1, Tab 12, Report of Dr. P. Kirwin, August 24, 1998.
15. 15Exhibit 1, Tab 25, Dr. J. R. Ferlisi's clinical notes and records. The first reference to back pain was in January 1996. When Mrs. Mondelli first saw Dr. Kirwin in August 1997, she reported that the back pain had originated approximately two years previously (mid-1995).
16. 16Exhibit 1, Tab 26, Report of Dr. J. R. Ferlisi, June 26, 1998 makes no mention of the impact of the back pain on Mrs. Mondelli's' present incapacity. Dr. Kirwin attributes the back pain to degenerative changes and arthritis. Exhibit 1, Tab 12, Report of Dr. P. Kirwin, August 24, 1994, Exhibit 1, Tab 27, X-rays of cervical and lumbar spine on September 1997 indicate degenerative disc disease at L4-L5. Exhibit 1, Tab 27, Bone Scan, indicates lower lumbar degenerative changes and mild peripheral arthritis.