Neutral Citation: 1998 ONFSCDRS 94

FSCO A96-000860

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

M. C.

Applicant

and

GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, M. C., was injured in a motor vehicle accident on September 26, 1994. She received weekly income replacement benefits of $380 from General Accident Assurance Company of Canada ("General Accident"), payable under the Schedule.¹ Benefits were terminated on September 21, 1995. The parties were unable to resolve their disputes through mediation, and Ms. C applied for arbitration at the Financial Services Commission of Ontario²under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. C entitled to weekly income benefits of $380 per week from September 22, 1995 and ongoing pursuant to section 7 of the Schedule?

2. Is Ms. C entitled to supplementary medical benefits of $9,740 for physiotherapy treatment provided by Metro Orthopaedic Rehabilitation Services under paragraph 36(1)(b) of the Schedule?

3. Were collateral benefits in the form of long-term disability payments "available" to Ms. C within the meaning of section 75 of the Schedule?

Ms. C also claims interest on any amounts owing and her expenses incurred in the arbitration proceeding.

Result:

1. Ms. C is entitled to weekly income replacement benefits of $380 from September 22, 1995 and ongoing.

2. Ms. C is entitled to expenses of $4,270 for treatment received from Metro Orthopaedic Rehabilitation Services.

3. Long term disability benefits were not "available" to Ms. C within the meaning of section 75 of the Schedule.

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on August 26, 27 and 28, 1997, February 23 and 24 and April 16, 1998, before me, Susan Sapin, Arbitrator. Those present at the hearing and the exhibits filed are listed in the Appendix.

Evidence and Findings:

Background

On September 26, 1994, Ms. C was returning home to Brampton from her job in Toronto when the vehicle in which she was a passenger was rear-ended by a van on the Queen Elizabeth Expressway. Her brother drove the car to the collision reporting centre and then drove Ms. C home. She went to see her family doctor, Dr. Ivan Hanna, the next day. He determined that she had suffered soft tissue injuries primarily to her neck, but also to her shoulders and upper back, and that she was suffering from acute anxiety and nervous tension. He prescribed an analgesic and a muscle relaxant and referred her to Royal Rehab³ for physiotherapy.

Ms. C had suffered soft tissue injuries to her neck and upper back in a similar car accident in May 1994 and was off work for seven weeks before returning to her full time job as a word-processing operator with the Bank of Nova Scotia on July 4, 1994. I accept her testimony that she still had pain in her scapular region and felt that she was not fully recovered when she returned to work.⁴ She was still attending physiotherapy twice a week at Royal Rehab for the first accident when the second accident occurred. Ms. C and Dr. Hanna both testified that the second accident was the more severe of the two.

In October 1994, Ms. C began a new course of therapy at Royal Rehab to treat the injuries sustained in the second accident. Therapy consisted mainly of passive modalities with limited stretching and strengthening exercises. She maintained that although it helped somewhat, it did not restore her to her previous level of function. It is clear from later medical reports that she became deconditioned in spite of therapy. Royal Rehab's January 1995 progress report and records indicated that she was pain-focussed and required continuous encouragement and explanation with regard to her active exercise program and pain. Her attendance was poor, in part due to a two-week absence because of a death in the family. Her treatment and recovery plateaued by February 1995. She was discharged and advised to continue with a home program of stretching and strengthening exercises, which she says she attempted to do in spite of her pain. She received no treatment at all from March to December 1995. In November she returned to Dr. Hanna. He diagnosed depression, prescribed an antidepressant and referred her to the Metro Orthopaedic Rehabilitation Services Clinics ("Metro Rehab") for more physiotherapy, recommending an active program.The clinic's discharge report dated December 6, 1996 indicated that she was discharged due to poor attendance and that at the time of the discharge she was on a massage therapy and acupuncture program on an as-needed basis, and that she still had residual complaints of headaches and mid-back pain.

Ms. C had worked as a wordprocessing operator at the Bank of Nova Scotia's corporate banking centre since February 1992 and her performance appraisals portray her as an adaptable, enthusiastic, cooperative, accurate and hard-working employee with an impeccable work record. Ms. C testified that she enjoyed her work. Her testimony, echoed by Dr. Hanna, was that her financial independence and ability to support herself and her 11-year old daughter were very important to her. Ms. C has not returned to work. She maintains that she can not do so due to chronic upper back pain, headaches and depression as a result of the September 1994 accident.

The Insurer argued that Ms. C was physically able to work by September 1995 and that any psychological disability was not caused by the accident or by chronic pain, but by significant intervening life events. It further argued that Ms. C was offered modified work by her employer and that, by not accepting it, she failed to mitigate her situation.

Entitlement to income replacement benefits:

1) The test

Ms. C is entitled to income replacement benefits pursuant to section 7 of the Schedule if she establishes, on a balance of probabilities, that the accident caused an impairment which renders her substantially unable to perform the essential tasks of her employment as a wordprocessing operator at the Bank of Nova Scotia. The accident need not be the only cause of her disability, but it must be a significant contributing factor.

The test is not whether she was able to return to lighter or modified duties for fewer hours, and gradually work up to unrestricted full-time work at the time benefits were terminated, but whether she was substantially able to perform her essential tasks if she started back to her full job on September 22, 1995, or at some point after that.⁵ This issue is distinct from that of whether it is reasonable to refuse suitable modified or part-time work, which will be dealt with under "Mitigation," below.

2) Essential tasks

I find that Ms. C was part of a small pool of wordprocessing operators who were required to type business loan documents and contracts to a very high level of accuracy for 12 to 14 loan officers, with some filing and faxing duties, 7 1/2 hours per day, 5 days per week. I accept Ms. C's testimony that the work was 90 percent typing, required prolonged sitting and concentration, and was mentally demanding. Her testimony was supported by Performance Appraisal documents which clearly indicated the employer's expectations of "accuracy, thoroughness and completeness" and that the volume of work was to be completed "within established time frames." Ms. C. was required to "accurately reproduce handwritten documents, including technical, rush and highly confidential assignments" and to ensure her work was accurately proofread. I accept her testimony that the job was stressful and the pace hectic, with many "rush" jobs, and that on some days she would work 7 1/2 hours straight, eating lunch at her desk, getting up only to go to the washroom. The CCDO⁶ classifies her work as sedentary.

The parties dispute whether or not wordprocessing operators can get up for stretch breaks as needed. This is a key point, as the Insurer argued that Ms. C was able to return to work with her limitations because she could take stretch breaks as needed to relieve her upper back pain, even though the bank had no official break policy and there were no set break periods. Ms. C testified that she could not perform to the expected level if she took stretch breaks at will and that, based on her previous experience, she did not believe that the bank would allow the frequent breaks she would need.

The Insurer argued that Ms. C's beliefs were inaccurate and unreasonable and produced Ms. Goldie Kramer, the bank's Assistant Manager of Human Resources, to rebut Ms. C's testimony. Unfortunately, Ms. Kramer had no direct knowledge of Ms. C's workload, the setup of her work area or how the unofficial break policy was actually applied. She informed herself prior to her testimony by speaking with Ms. C's immediate supervisor, who did not testify. Her testimony about Ms. C's daily tasks did not differ substantially from that of Ms. C except for the issue of breaks. Ms. Kramer testified that although the bank had no official break policy and no set breaks, Ms. C could take breaks as needed. I prefer Ms. C's direct evidence about her working conditions over Ms. Kramer's secondhand knowledge. I find that Ms. C was required to maintain strict performance standards and that this requirement is not compatible with the taking of frequent breaks. I find her essential tasks included prolonged sitting, typing and concentration with infrequent breaks.

3) Disability

I find on the medical evidence discussed below, that although Ms. C may have been physically able to return to part-time work with modified duties, she was prevented from doing so or from resuming her full-time work in September 1995 or at any time thereafter due to chronic pain and associated psychological symptoms.

a) Physical disability

Ms. C's fitness for work was first assessed four months after the accident by the Canadian Back Institute (CBI) on January 31, 1995, and then by Dr. B.W. Malcolm, an orthopaedic surgeon, on February 17, 1995, both at the request of her employer.

The CBI concluded that Ms. C suffered from chronic soft tissue pain as a result of her motor vehicle accidents and offered little hope for resolution of her symptoms considering how long she had them. They felt that she could return to modified duties two to four hours a day, but that due to her perceived sitting tolerance of 15 minutes, during the first few weeks, she would have to stand, walk and stretch as necessary. In addition, they recommended an active exercise program to build up her limited trunk muscle endurance.

Dr. Malcolm agreed. He concluded that Ms. C's ongoing impairment was based on her subjective pain rather than an objective limitation as a result of the accident. He recommended she return to work but, due to the fact that she had become deconditioned as a result of her passive therapy over the last five months, he felt it was imperative that a return to work be restricted in hours and modified in terms of sitting duration. He felt that a successful return to work would depend on the modifications provided and her motivation and ability to work with ongoing pain. Dr. Hanna testified that in March of 1995 he agreed with the recommendations of the CBI and Dr. Malcolm for a modified return to work and an active exercise program and that he advised Ms. C that she would have to accept that she could not expect to be 100 percent pain free before returning to modified work.

In contrast, Dr. John Zeldin, an orthopaedic surgeon who examined Ms. C in April 1995 at the request of the Insurer, concluded that she was able to return to her work as a wordprocessing operator although he found that she still suffered residual discomfort that was possibly due to deconditioning. He found that she required no further treatment except for an active exercise program that she could do on her own, and made no recommendations for modified work. He noted her concern that she wanted to be sure she would be able to deal with the stress at work before returning but he felt there was no physical barrier to her returning, and that it would be helpful and not harmful for her to do so.

I prefer the opinions of the CBI and Dr. Malcolm over that of Dr. Zeldin because they were more thorough and comprehensive. Unlike Dr. Zeldin, they did not simply dismiss Ms. C's concerns but incorporated them into specific work-related recommendations which were clearly geared to facilitating her successful return to her own particular job.

I also prefer the assessments of the CBI and Dr. Malcolm over the April 1995 functional capacity evaluation ("FCE") obtained by the Insurer from Nicholas Cipp, a kinesiologist. Mr. Cipp used the "ERGOS Work Simulator," which provides a computerized analysis of a person's safe work capacity, as well as his observations, to evaluate Ms. C's ability to safely perform the essential tasks of her job. He reported that Ms. C complained of increased discomfort in the shoulders during fingering and handling tasks, that her pace slowed during these tasks and that she required rest breaks and complained of a "really stiff back" after an hour of sitting. Despite these findings, he found that she could safely function at the light level of work capacity as defined by the CCDO. Based on that, and on a comparison of her performance with the CCDO's description of the physical demands for her type of work, he concluded that she could return to unrestricted full-time work duties. I find that, unlike CBI and Dr. Malcolm, Mr. Cipp failed to take Ms. C's pain complaints and her specific working conditions into account, thereby underestimating the impact of her deconditioned state and her subjective pain on her ability to do her work. He also ignored the concerns she expressed to him that Dr. Hanna recommended she undergo an active conditioning program before she returned to work. All of these factors must be taken into account when assessing whether a person is substantially able to complete the essential tasks of her own employment. An assessment that considers only a person's ability to function safely does not meet this requirement.

When Ms. C did not return to the modified work offered by the bank, it terminated her employ-ment effective May 8, 1995.

A Designated Assessment Centre (DAC) Physical/Functional Assessment was carried out on September 5 and 6, 1995. I found it to be unsatisfactory for reasons similar to those stated above with respect to the reports of Dr. Zeldin and Mr. Cipp. The DAC assessors noted Ms. C's pain complaints, her deconditioned state and the weak and painful condition of her upper back. Their report indicated that "a detailed job description was conducted via a telephone conversation by the kinesiologist with the employer regarding the physical demands of [her] pre-accident job." They concluded that Ms. C could do her job because they understood from her employer that Ms. C could work at her own pace and was given the flexibility to stand and stretch throughout the day. I reject this conclusion for several reasons. Firstly, I found that her job was not in fact as flexible as the employer made out. Secondly, I note that during the DAC's functional assessment, Ms. C sat for a period of 39 minutes the first day and 49 the second, and that her cumulative sitting time was only about 1 hour and 20 minutes on each of two full days of assessment. I do not see how that translates into her having the endurance to complete a full work day of prolonged sitting and typing under the conditions she described. And, finally, it does not appear that the DAC assessors reviewed the reports of the CBI or Dr. Malcolm, information that would be helpful, in fact necessary, to a complete and balanced assessment.

I find the most thorough and reliable medical evidence was that obtained by Ms.C's own employer from CBI and Dr. Malcolm, both of whom found her to be suffering from a chronic pain condition and to be fit initially only for modified part-time work. I do not find that this equates to a substantial ability to perform the essential tasks of her job.

As a result of the DAC assessment, General Accident terminated benefits effective September 21, 1995. In November, Ms. C returned to Dr. Hanna suffering from depression. Dr. Hanna prescribed an anti-depressant and referred her to Metro Rehab to begin a new course of physiotherapy, as described above. He testified that he made the referral because she asked him to and he thought that she needed some form of therapy to get her "back on track." Dr. Jaspinder Sidhu, a chiropractor at Metro Rehab, noted her deconditioned state and diagnosed "chronic ...joint dysfunction of the thoracic spine." Unfortunately, the treatment consisted mostly of passive modalities such as acupuncture and massage, particularly after February 1996. It does not appear that Ms. C ever received the much-recommended supervised active exercise program.

When Dr. Michael Kliman, an orthopaedic surgeon, examined Ms. C in March 1996, at the request of Ms. Cs solicitor, he made essentially the same observations and recommendations as those made a year earlier by the CBI and Dr. Malcolm, notably that she was deconditioned and suffering residual complaints from her soft tissue injuries, but that she could manage limited sedentary work under the right circumstances; that she should attempt a gradual return to full-time work starting with modified duties and hours; and that she needed a good specific active exercise program, preferably supervised, ideally at a fitness centre. He made the same recommendations when he examined her again later that November. Dr. Sidhu also felt Ms. C could manage sedentary part time work with frequent breaks, but felt that by May 1996 she could proceed with an active unsupervised exercise program.

I find that Ms. C was physically unable to substantially perform the essential tasks of her employment in September 1995 due to chronic pain. I find, based on the medical evidence as a whole, that her physical condition had plateaued in February 1995 at the time she was discharged from Royal Rehab and that her chronic pain condition subsequently worsened because she never received appropriate treatment for it. In addition, I find that she developed sleep difficulties and psychological symptoms of anxiety, clinical depression and anger control which continued to prevent her from returning to her job.

b) Psychological disability

Ms. C's pain-focussed behaviour was first noted in January 1995 by Royal Rehab and a month later by CBI. Dr. Malcolm in particular emphasized in February that Ms. C's return to work would depend on her ability to deal with her chronic pain. Dr. Hanna was sufficiently concerned to refer her to a Dr. Russell, a chronic pain specialist, in March 1995.⁷ Dr. Hanna did not see Ms. C again until November 1995, when he treated her for depression. In July 1996 he prepared a report at the request of her solicitor, stating that Ms. C suffered from chronic pain syndrome and depression that might result in a permanent disability. In his report, he attributed these conditions solely to her September 1994 motor vehicle accident.

I find that it was evident by March 1995 that there was a psychological component to Ms. C's pain experience and her inability to return to work. However, Dr. David Prendergast, the psychologist who interviewed Ms. C as part of the September 1995 disability DAC assessment, found no depression, anxiety or psychological impairments which would significantly interfere with her ability to return to work. According to Dr. Prendergast's C.V., his experience with sufferers of chronic pain dates from 1993. His lack of experience relative to Dr. Michael Gadon, whose evidence is discussed below, is one reason why I prefer Dr. Gadon's evidence over that of Dr. Prendergast.

Based on what Ms. C told him, Dr. Prendergast concluded that she was largely in control of her emotional functioning, with a positive attitude toward herself and her pain. He reported that she told him that her pain was stressful, that she rated it some days as 10 out of 10, and that she had never noticed her emotional distress to exacerbate her pain. According to his report, she also told him she could not even imagine returning to work, that she cried easily, and had feelings of terrible frustration and sadness. He found that she did not display overt pain behaviours and there was no exaggeration of her pain symptomatology.

He accepted her description of herself as a strong person who dealt with things as best she could and who saw herself as a "coper"; a private, kind, and shy person." I agree with Dr. Gadon's criticism, below, that Dr. Prendergast's conclusions do not correspond to his findings. Given that Dr. Prendergast formed his conclusions on the basis of a single 60-minute interview, that it is not clear what, if any, previous medical information he reviewed, and that he did not adequately address chronic pain which was clearly an issue by that time, I place little weight on his report.

Furthermore, his impression of Ms. C's condition is in marked contrast to that reported by Dr. Michael Gadon, the psychologist who assessed her six months later in March 1996, at the request of her solicitor. Dr. Gadon has ten years' experience in chronic pain and disability assessment and is also a DAC assessor. In his March interview with Ms. C, Dr. Gadon found that her complaints of poor sleep and appetite, weight loss of 15 pounds, social withdrawal, anger, irritability and frustration were secondary to her chronic pain and "associated occupational/life disruption." He reviewed the medical reports discussed above, including Dr. Prendergast's September 1995 DAC psychological assessment. He found that Dr. Prendergast had recorded the same psychological symptoms at that time. I agree with his opinion that Dr. Prendergast's conclusions were inconsistent with his findings.

It was Dr. Gadon's opinion that, because the symptoms went untreated by way of psychological counselling or behavioural pain management, Ms. C's condition deteriorated. She developed a clinical depression, and her anxiety became generalized beyond driving to social situations due to the stress of her job loss. He noted that she was particularly vulnerable to anxiety and depression due to a childhood history of trauma and abuse, and that in March 1996, she felt helpless and overwhelmed by her situation. His report reveals that Ms. C told him that her productivity and accuracy had declined at work after her first accident, and that this was reflected in a performance evaluation done two months after that accident. In fact that appraisal, which was done in June 1994, contains scores identical to those of 1992 and 1993 and indicates she continued to function at the same level. She told him that she did not feel she could meet the expected performance requirements of typing speed and accuracy following the second accident. Rather than diminishing Ms. C's credibility, I find that her inaccurate statement to Dr. Gadon about her performance appraisal is consistent with her feelings of being overwhelmed and reflects the distorted perception of her abilities that is clearly part of her depression.

Dr. Gadon saw her again in November 1996. Her depression and difficulty with anger, especially toward her daughter, were worse. He attributed the increase in symptoms to the chronicity of her condition and the fact that she was not getting better. He found that she continued to be disabled from her employment due to the combined effects of her chronic pain and psychological distress.

The Insurer argued that Ms. C's depression, if any, was due not to the accident, but to therapeutic abortions she underwent in May and December of 1995 and to the subsequent breakup in July 1996 of her eight-year relationship with her boyfriend, whom she discovered had been unfaithful to her. It suggested that these were significant intervening causes of stress and depression which could exacerbate her pain experience. The Insurer maintained that Ms. C was not credible because she did not share any of these significant life events with either Dr. Prendergast or Dr. Gadon and she did not even tell her own family doctor about the termination of the two pregnancies. It alleged that she deliberately misrepresented herself to these professionals, and that the reports and testimony of Dr. Gadon and Dr. Hanna were suspect as a result.

It is true that Ms. C did not tell any of these doctors about the 1995 abortions and that only Dr. Hanna knew of her relationship troubles. However, I attribute this behaviour not to any intent to deceive, but to her personality, which all three doctors described as private, shy and reserved. As Dr. Hanna put it, Ms. C was not one to "pour out her heart in the doctor's office." I accept this explanation as well as Ms. C's testimony that she preferred to try and cope with her problems on her own and to only seek help if absolutely necessary.

There were in fact three abortions, one in January 1994, prior to the accidents, and the two in May and December 1995, after the second accident. Dr. Hanna referred Ms. C to Dr. E. Istvan, for the first abortion. Ms. C returned to him for the second one as well. The only indication of a possible link between the abortions and Ms. C's depression are the notations "Admitting Diagnosis - Pregnancy, depression" on Dr. Istvan's procedure reports for the two abortions he performed. Dr. Istvan was not called to testify. His clinical note of Ms. C's post-operative follow-up visit after the May 1995 procedure on June 6, 1995 reads: "well - no problems." Dr. Hanna testified that although Ms. C had been worried and anxious about the January 1994 unwanted pregnancy, the only one of which he was aware, she was not depressed about it.

The complete clinical notes and records of the clinic that performed the third abortion in December 1995 included an assessment by a counsellor, which indicated that Ms. C was clear about her decision to terminate her pregnancy and that she was slightly nervous. Nowhere was it indicated that she was depressed. Ms. C adamantly denied at the hearing that the abortions themselves distressed her, and stated to the contrary that it was the prospect of bearing children that she could not afford to support as a single mother, particularly when she was unemployed in 1995, that concerned her more. I accept her statement. Her testimony was supported by that of Dr. Hanna, who stated that he regularly counsels patients about unwanted pregnancies and that their emotional responses to terminating a pregnancy vary widely. He had seen Ms. C through her first abortion in 1994 and it did not upset her and he felt there was no reason to expect her to react differently to the subsequent two, although he was not aware of them. In fact he stated that it was even less likely that, having had one before, subsequent abortions would upset her. He stated that an abortion was more likely to relieve the stress of an unwanted pregnancy than to cause stress itself. Dr. Gadon gave a similar opinion with respect to the wide range of individual reactions to the termination of an unwanted pregnancy.

For these reasons I do not find that the abortions caused or contributed to Ms. C's depression.

Ms. C testified that the break-up of her relationship in July 1996 was very upsetting for her but that it did not cause her to be depressed. Dr. Hanna's clinical notes and records for July 11, 1996, indicate he spent an hour with her on that date and that she was very depressed, that she felt she had lost everything, that she had thoughts of suicide and that it was only the thought of her daughter that stopped her. She felt she had tried to help herself but that she now saw no way out of her problems. He prescribed an antidepressant. His notes indicated that she still suffered back pain and depression and continued to be preoccupied with her relationship troubles over the next few months.

In a July 24, 1996 report, Dr. Hanna stated that Ms. C had developed a chronic pain condition and severe depression as a result of the motor vehicle accident. On cross-examination he conceded that the increase in her depression in July was likely due to the loss of her relationship. It was his opinion that the depression was 50 percent due to losing her boyfriend and 50 per cent due to the loss of her job.

Dr. Hanna described Ms. C as a very focussed person from a less than privileged background who had worked from the age of 12, and that the most significant factors in her life were her job, her daughter, her car and her boyfriend. Except for her daughter, these had been taken from her one by one until by July 1996, she felt overwhelmed and unable to see a way out of her problems. When told of Ms. C's two pregnancies in May and December of 1995, he admitted that she had not been entirely forthright with him. However, he felt this was due to her reserved nature, which caused her to be self-reliant and to seek help only when she felt there was no other choice. This accords with Dr. Prendergast's opinion of Ms. C's personality, although he differed from Dr. Hanna in his conclusion about how the accident affected her.

Despite the Insurer's criticisms of Dr. Hanna and his testimony, it is clear that, of all the witnesses, he had known Ms. C the longest and I find he had an excellent grasp of her personality which was not out of keeping with the assessments of other professionals. I do not find, as the Insurer suggested, that he presented as an advocate for his patient. I have no reason not to accept his testimony that the motor vehicle accident remained a significant contributing factor to her chronic pain condition and depression as late as July 1996 and afterward.

Ms. C did not tell Dr. Gadon about the abortions or her relationship troubles. He testified that as a psychologist he would have wanted to know all sources of stress before forming an opinion. However, he maintained his original opinion that Ms. C's chronic pain and psychological symptoms resulted from the accident, pointing out that the symptoms were already present in March 1995, prior to any of the other events taking place. He did agree that her relationship problems in July 1996 may have been a reason why she was more depressed in November 1996 than she had been in March 1996 but he stated that he did not think they would be the sole cause of her depression. In fact, it was his view that relationship problems were often the result of a chronic pain situation.

Mitigation:

The Insurer argued that Ms. C made no effort to mitigate her situation by returning to either modified or full-time work at the bank.

An insured person's responsibility to seek employment is set out in Section 13 of the Schedule:

13(1) An insured person who is entitled to weekly income replacement benefits under this Part shall make reasonable efforts to,

(a) return to the employment in which he or she engaged at the time of the accident; or

(b) obtain employment that satisfies the criteria set out in subsection 30 (2).

(2) Subsection (1) does not apply if,

(a) employment would be detrimental to the person's treatment or recovery...

The criteria set out in subsection 30(2) are as follows:

30(2) 1. The person,

i. is able and qualified to perform the essential tasks of the employment, or

ii. would be able and qualified to perform the essential tasks of the employment if the person had not refused to obtain treatment or participate in rehabilitation that was reasonable, available and necessary to permit the person to engage in the employment.

2. The employment exists in the area in which the person lives and is accessible to the person.

3. It would be reasonable to expect the person to engage in the employment having regard to the possibility of deterioration in the person's impairment and to the person's personal and vocational characteristics.

Subsections (13)(3) and (4) permit the insurer to reduce benefits by 90 percent of the net amount that the insured person could earn in an employment that satisfies the above criteria, provided the insurer first gives the insured person 30 days notice.

I heard no evidence or argument that the Insurer complied with the notice requirement at any time, or that any part of section 13 applies.

In any event, I would not find that Ms. C is in breach of any of the provisions of section 13. Firstly, I am not persuaded that the modified work the bank offered Ms. C was in accordance with the specific recommendations of the CBI and Dr. Malcolm or that it met the criteria as set out above.

Ms. Kramer testified about the steps the bank normally would take to accommodate an em-ployee. Unfortunately, as noted above, Ms. Kramer had never had anything to do with Ms. C's case and relied in her testimony on file documents and conversations with Ms. C's direct supervisor in preparation for the hearing. The direct supervisor did not testify. I found Ms. Kramer's evidence to be purely theoretical and not helpful in determining whether appropriate modified work had in fact been offered.

The only evidence that modified work was offered to Ms. C was a note made by Heather Wilberforce, the manager of Scotia Health Services (SHS), the bank's short-term disability insurance carrier, of a telephone call she made to Ms. C on February 28, 1995 to the effect that the medical information received by SHS did not substantiate continuing disability, that the bank would support four weeks of modified work and that "benefits" would be contingent upon Ms. C's participation in returning to work. There is no evidence that SHS accepted the specific recommendations of CBI or Dr. Malcolm or that anyone from either SHS or the bank informed or assured Ms. C that those specific recommendations would be followed.

Secondly, Ms. C herself was adamant in her belief that her employer would not accommodate her as she required. This belief was based on her previous post-accident full-time return to unmodified work, where she felt she returned before she was ready and could not perform to the standards expected. I find her belief to be consistent with the bank's performance expectations as reflected in their performance standard documents, and I have found her belief to be reasonable given her psychological state at the time.

Thirdly, Ms. C lives in Brampton and worked at the downtown branch of the bank. The bank terminated Ms. C's employment on May 8, 1995. Therefore, there was no employment that met the criteria as required under paragraph 30(2)3 of the Schedule after that date.

Lastly, the Insurer suggested that the appropriate course of action would have been for Ms. C to return to work and work out any difficulties about the modified work with her employer. That may well be, but there is no evidence that the Insurer communicated this to Ms. C at any time or that it either explained her options to her or informed her of its right to reduce benefits under subsections 13(3) and (4) if she failed to accept the work as offered. There is no evidence that the Insurer made any efforts to assist or support her in returning to modified work.

For these reasons, I find that the Insurer cannot rely on Ms. C's failure to return to the modified work offered her to establish any breach of section 13 on her part.

I make this finding in spite of the fact that it is clear from the documents provided by the Bank of Nova Scotia that Ms. C was sent several letters between early March and the time she was terminated on May 8, 1995 to the effect that her continued absence from work was medically undocumented and that she had the choice of either providing medical documentation to substantiate a continued absence or of returning to modified work. She did neither and, it appears, never bothered to contact her employer. However, although this could be considered unreasonable behaviour under normal circumstances, I find that her behaviour is understandable given that she was suffering from chronic pain and depression for which, at that time, she was receiving little treatment except for anti-depressant medication.

Section 73 of the Schedule contains similar provisions to Section 13. It sets out the responsibility of an insured person to obtain treatment and participate in rehabilitation, as well as the insurer's remedy should the insured person not comply, which is to notify the insured person that it intends to reduce weekly benefits. The insurer may only take advantage of one or the other sections to reduce benefits, not both. Again, I heard no evidence or argument that the Insurer complied with this section. In fact, I find that Ms. C required a supervised exercise program and a multidisciplinary treatment approach to her chronic pain condition, as well as psychological counselling as recommended by Dr. Gadon, without which I find she was not able to ready herself to cope with her work environment. She did not receive any of these, and was pretty much left to her own devices. I accept her testimony that she understood that the Insurer would not pay for any further treatment, that she could not afford to pay for psychological counselling herself, and that she was not aware that she could receive such counselling from a psychiatrist, paid for by the Ontario Health Insurance Program.

I agree with Arbitrator Palmer in Gaba and Allstate Insurance Company⁸ that in cases where an injured person continues to complain of pain, although independent orthopaedic surgeons cannot find objective signs of impairment, the insurer should be among the first to assist its insured to pursue psychological, rehabilitative or occupational counselling. In this case the Insurer never requested an independent psychological assessment prior to terminating benefits, and subsequently relied on the results of the DAC assessment, which made no treatment recommendations.

The Insurer never exercised its right to reduce benefits under section 73. I find that it cannot now, at the hearing, put forward what she ought to have done and rely on that to argue that she failed to comply with section 73 or to mitigate her circumstances.

Entitlement to supplementary medical benefits pursuant to subsection 36(1)(b) of the Schedule:

Ms. C claimed a total of $9,740⁹ for chiropractic, acupuncture and massage treatment provided by Metro Rehab from December 18, 1995 until November 6, 1996, as follows:

Initial assessment:

December 18, 1995

$ 180

Chiropractic assessment:

December 20, 1995

180

Reassessment:

January 30, 1996

150

Acupuncture and massage:

December 20, 1995- April 15, 1996

3,185

Active physiotherapy:

December 20, 1995 - May 1, 1996

2,730

Acupuncture and massage:

May 6, 1996 - November 6, 1996

3,315

Total:

$9,740

Section 36 of the Schedule requires insurers to pay for all reasonable expenses incurred for such treatment pending resolution of a dispute.

I find that the evidence indicates that what Ms. C really required, and what would have been reasonable treatment in the circumstances, was a supervised active exercise program in conjunction with a multidisciplinary chronic pain treatment program and psychological counselling. As the treatment provided by Metro Rehab consisted at least partly of what she needed, I find that the active physiotherapy and passive measures (acupuncture and massage) in support of it that were provided by Metro Rehab were reasonable up to the end of February 1996. I make this finding despite the fact that treatment was initiated over a year after the accident and after a previous course of treatment at Royal Rehab was not entirely successful. I have chosen this date based on a reassessment report dated February 6, 1996 by Ronald Wu, Metro Rehab's physiotherapist. He identified a long-term goal of reintegrating Ms. C into a part- time work program and recommended that if further improvement were not made in four to six weeks, an FCE should be done. No FCE was ever done; there was no improvement by May, and no further assessments or recommendations were made or carried out and no reports were provided to anyone.

I find therefore that any treatments after that date were not reasonable within the meaning of subsection 36(1) of the Schedule. The exclusively passive treatments were clearly not supportive of any active exercise program, work-hardening program or any attempt to return to work, modified or not.

Further, Dr. Hanna testified that he referred Ms. C for treatment at Metro Rehab because she asked him to and because he felt that she needed treatment of some kind and was not receiving any at all at the time. His recollection was that a relative had recommended it to her. He was unaware that the treatments had gone on as long as they had or that they were exclusively passive after May 1996. He was not provided with any assessments or progress reports. I heard no convincing evidence from Ms. C, Dr. Hanna or Dr. Sidhu that treatments after February 1996 was reasonable or that passive treatment after May did anything but provide temporary relief. It is clear that treatment was terminated when Ms. C simply stopped attending.

I find that Ms. C is entitled to reimbursement for expenses of $4,270, which includes the cost of the three assessments and active and passive treatments up to February 28, 1996.

Availability of Collateral Benefits:

Section 75 of the Schedule provides that an insurer may reduce weekly benefits by any payments for loss of income available to the insured person as a result of the accident under any income continuation benefit plan.

General Accident argued that long-term disability (LTD) benefits were "available" to Ms. C from The Canada Life Assurance Company (Canada Life), the employer's LTD carrier, as of March 18, 1995. It argued that if Ms. C were found to be disabled under section 7 of the Schedule, then LTD benefits would have been available to her because the disability test under the Canada Life policy for the first 12 months of disability is the same as that under section 7. It argued that, as Ms. C took the position that she was disabled under section 7, she had an obligation to the Insurer to apply for LTD benefits, and, as she did not do so, she placed the Insurer in a detrimental position in the event of a finding of disability under section 7.

The Canada Life LTD policy defines "disabled" in the first 12 months as ". . . complete inability of the individual due to injury. . .or mental disorder to perform either the regular duties of the individual's pre-disability occupation or the regular duties. . .modified to accommodate the individual's disability . . ."

This is not the same test as found in section 7 of the Schedule. As explained above, the ability to do modified work does not necessarily equate to a substantial ability to perform the essential tasks of employment under section 7, and in Ms. C's case I have found that it does not. Given that the bank took the position, based on its view of the medical evidence it obtained, that she was fit for modified work, and given that it offered her its version of such work, I find that it cannot be said that she would have qualified for LTD benefits under Canada Life's disability policy. I find therefore that these benefits were not available, regardless of whether she applied for them or not.

The Insurer bears the onus of adducing clear evidence that LTD benefits were available to Ms. C.¹⁰ I find that it has not done so.

Order:

1. General Accident shall pay Ms. C income replacement benefits of $380 per week from September 22, 1995 and ongoing.

2. General Accident shall pay Ms. C supplementary medical benefits of $4,270 pursuant to paragraph 36(1)(b) of the Schedule.

3. General Accident shall pay interest on all outstanding amounts in accordance with section 24 of the Schedule.

4. General Accident shall pay Ms. C her expenses incurred in respect of the arbitration.

December 15, 1998

Susan Sapin

Arbitrator

Date

Appendix

Present at the Hearing:

Applicant:

Ms. C

Ms. C's

Azam Murji

Representative:

Barrister and Solicitor

General Accident's

Nan Diaram

Representative:

Barrister and Solicitor

General Accident's

Denise Owen

Officer:

Witnesses:

Ms. C

Dr. Ivan Hanna

Dr. Jaspindher Sidhu

Ms. Goldie Kramer

Dr. Michael Gadon

Exhibits:

The parties filed six exhibits.

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. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule "refers to the original O.R. 776/93, and "1995 Schedule "refers to O.R. 776/93 as amended.
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. 3ACT Health Group (formerly Royal Rehab Finchgate Centre)
4. 4Dr. B.W. Malcolm, the orthopaedic surgeon who examined her in February 1995, reported that she was 70 percent recovered when she went back to work. The Royal Rehab records indicated she was still suffering pain in August 1994, prior to the second accident, and had trouble attending therapy regularly due to work conflicts. However, Dr. John Zeldin, an orthopaedic surgeon who examined her in April 1995 concluded that she was "pretty well back to her pre-accident state" with some residual discomfort when she returned to work.
5. 5Rutledge and Wawanesa Mutual Insurance Company,(OIC A96-001160, June 17, 1997)
6. 6Canadian Classification and Dictionary of Occupations.
7. 7No appointment was ever made, however, and the matter was not followed up either by Dr. Hanna, Dr. Russell, or Ms. C.
8. 8(OIC A-000624, August 21, 1992)
9. 9Calculated from 22 invoices filed as Exhibit 1, tab 8.
10. 10Saqui and Allstate Insurance Company of Canada, (OIC A-011612, April 30, 1996); Vo and Maplex General Insurance Company,(OIC A-002777, October 4, 1993) appeal decision (OIC P-002777, March 11, 1994)