Neutral Citation: 1999 ONFSCDRS 11

OIC A97-000486

BETWEEN:

LORRAINE LANCTOT

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION

Before:

M. Kaye Joachim

Heard:

June 15, 16 and 17, 1998 in Ottawa Final submissions were received in December 1998

Appearances:

Douglas D. G. Stel for Ms. Lanctot

Peter G. Hagan for Zurich Insurance Company

The Applicant, Lorraine Lanctot, was injured in a motor vehicle accident on February 25, 1993. She applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under Ontario Regulation 672.¹ Zurich terminated weekly income benefits on February 25, 1996. The parties were unable to resolve their disputes through mediation, and Ms. Lanctot applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Is Ms. Lanctot entitled to weekly income benefits after February 25, 1996?

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

Ms. Lanctot is entitled to six weeks of weekly income benefits for the period commencing March 21, 1996, plus interest. Otherwise, Ms. Lanctot is not entitled to further benefits after February 25, 1996.

The Test:

In order to establish entitlement to ongoing weekly benefits beyond February 25, 1996, Ms. Lanctot must establish that her injuries from the accident continuously prevent her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience.

Education, Training and Experience:

Ms. Lorraine Lanctot was born in November 1951. She attended a French Catholic elementary school in Ottawa where she completed grade eight and subsequently attended a secondary school but failed to complete grade nine after two attempts.² She left school at the age of sixteen and began working as a sales clerk at Towers, a retail clothing store. She married, had three children, then divorced her first husband. She worked for some time as a manager at the Red Barn, a restaurant. Her duties included doing payroll and cash, closing the restaurant at night, doing the "float" and taking inventory. She met her second husband, David Lanctot while working at the Red Barn and they were married in April 1979. They moved to Cornwall. She worked for one year as a manager at a small store attached to a motel/truck stop called the Fifth Wheel. From 1980 to 1986 she worked at the Dominion grocery store, working as a cashier, stocking shelves and serving as a deli wrapper in the meat department. The family moved to Embrun, a small town, half an hour away from Ottawa, in 1986. Soon after, Ms. Lanctot began operating a day care out of her home, taking in approximately five children full-time and three children part-time. She also worked occasionally as a trainer/assistant at Weight Watchers. She was operating the day care at the time of the motor vehicle accident in February 1993.

Prior to the accident, Ms. Lanctot and her husband led an active social life and enjoyed bowling, ski-dooing, skiing, fishing and visiting the cottage. She enjoyed playing the guitar and singing. Her pre-accident medical condition was generally unremarkable, although she suffered a lengthy period leading up to 1988/89 where she was under stress, for reasons she attributes to custody disputes with her first husband. Pre-accident medical records indicate that she attended frequently at the Embrun Medical Clinic, complaining of migraines and physical aches and pains.³ She was prescribed large doses of Fiorinal.⁴ She also suffered some hearing loss in the right ear and had been prescribed a hearing aid since 1988.⁵ Her medical situation apparently resolved itself after 1988/89 and although Ms. Lanctot frequently attended at the Medical Clinic prior to the accident, she had no specific disabling condition. She had been working without interruption since 1980.

The Accident of February 25, 1993:

While stopped at a red light in Montreal, the car in which Ms. Lanctot was seated was rear-ended by a drunk driver during a high speed chase with police. Ms. Lanctot was in the back seat, unbelted, peering forward through the front seats, looking for an address. The force of the impact drove her head through the rear window, causing the window to break. She suffered physical injuries to her head, jaw, right shoulder, knee, earbones, tailbone and soft tissue injuries to her neck, head and back. She was taken to Montreal General Hospital, kept overnight and released the next day. The hospital records show no loss of consciousness.⁶ X-rays were taken, her right shoulder was reset and she was released wearing harnesses for both arms, and a head collar, and provided with a "donut" for the pain in her tailbone. She returned to Embrun, where she originally sought treatment with her family physician, Dr. Jean A. Roy. She changed to Dr. Darrell Menard for a period of time and eventually started seeing Dr. Marangere in 1995, who has remained her family physician ever since. She attended physiotherapy four days a week at the Embrun Physiotherapy clinic for a lengthy period of time. She underwent several operations on her knees and her ears, and although the physical injuries healed gradually, she developed a chronic pain syndrome which she asserts prevents her from returning to employment.

David Lanctot testified that after the accident, Ms. Lanctot could not engage in any of their old activities, and as a result they lost their circle of friends. He did not specifically testify as to Ms. Lanctot's abilities in 1996, but testified that they separated in February 1997 because he couldn't deal with her problems anymore.

At the hearing Ms. Lanctot testified that she still suffers from severe pain in her head. She has a hard time concentrating and remembering things. A piece of glass is still embedded in her head, which causes her stress.⁷ Her hearing deteriorated after the accident and she now wears hearing aids in both ears. She wears a brace for her jaw and currently does jaw exercises. She experiences a great deal of pain in the jaw, face and eyes and has trouble chewing. She has constant headaches. She has tightness and pain mostly in her left shoulder, sometimes in her right side. She has pain in her left arm traveling down from the left shoulder blade, and a lack of strength in her hands. Her back aches and she must move around to get comfortable. She feels numbness and sometimes sharp pain in her tailbone. She has pain in her hip if she walks or sits for a long period. She gets pain in the knees from frequently going up and down stairs, kneeling or bending down. On cross examination she agreed that her most significant problem in the previous month was with her neck and shoulder. This is consistent with the complaints she presented to her doctors, including her family physician.

Ms. Lanctot testified that she can do light housework, including dusting, small loads of laundry and dishes, cooking, and grocery shopping in small amounts. She cannot do heavy work such as washing the stove, fridge, floor, windows, vacuuming or ironing. She is capable of taking care of her own needs, except for washing her long hair. She goes to the hairdresser every two weeks to have her hair washed.

She does not believe she can do any form of work. She cannot return to babysitting, because of the heavy lifting involved. Cashier work requires repetitive movement of the neck and arms, heavy lifting and prolonged standing. She agreed that she could perform the tasks of an office clerk, a telephone receptionist or sales clerk in a retail shop, but stressed that the unpredictability of her pain would prevent her from attending regularly at work. In 1994, she attempted a supervised return to work at her daycare business. Since that time, she has not attempted any work hardening program, or any paid or volunteer work.

Physical Injuries

It is evident from the medical evidence that Ms. Lanctot suffered serious physical injuries to many parts of her body as a result of the accident. However, over time, many of these injuries have resolved or stabilized.

1) Jaw

Ms. Lanctot suffered permanent disc damage to her jaw, with symptoms of stiffness, soreness and some clicking in her jaws. She was referred to Dr. Gerald B. Wexler for temporomandibular joint pain and was diagnosed with bilateral anteriorly displaced discs with reduction on opening, and concurrent trigeminal myofascial pain dysfunction syndrome (pain in the jaw and face).

She was prescribed appliances for her jaws. She continues to see Dr. Wexler, who predicts her condition will be permanent.⁸

2) Neck, Back and Shoulders

Ms. Lanctot suffered soft tissue injuries to her neck and back, and dislocated her right shoulder. X-rays of the cervical and lumbosacral spine and both shoulders were normal.⁹ An MRI of the cervical spine in January 1994 was normal. CTB diagnostic imaging in March 1994 showed no significant abnormality in her chest, lumbosacral spine or cervical spine or shoulders.¹⁰ Nerve conduction studies done in May 1996 to investigate cervical and lumbar pain showed normal results.¹¹

Ms. Lanctot consistently complained to all doctors of a severely restricted range of motion in her neck and constant pain in the left side of her neck, shoulder and upper arm. As early as October 1993, Dr. Racine diagnosed developing chronic pain syndrome and suggested she would benefit from a pain management clinic.¹²

3) Knees

Ms. Lanctot suffered pain in her knees following the accident and was referred to Dr. Jean Pierre Lafleche, an orthopaedic surgeon. She had surgery on her left knee October 21, 1994 to smooth out some roughening on the left patella, and also underwent some manipulation under anaesthesia at a later date. No surgery was carried out on the right knee. Dr. Lafleche predicted that Ms. Lanctot would continue to experience pain in the retropatellar area of her right knee, but stated that she should be able to do housework and office work, with restrictions on heavy work, climbing stairs, deep knee bending, prolonged standing or walking.¹³ Dr. Marangere, her family doctor since 1995, did not consider Ms. Lanctot's knee problems to be a major disabling factor, based on his observations of her in his office.

4) Ears

The impact of the car accident dislocated Ms. Lanctot's middle ear ossicles, an unusual injury resulting from a substantial impact to the head. She was referred to Dr. G. Guy Laframboise, an ear, nose and throat specialist. He performed a tympanoplasty and ossicular reconstruction in the right ear.¹⁴ Following another surgery on the right ear in March 1996, Dr. Laframboise advised that he had completed the surgical program on Ms. Lanctot and stated that he did not believe any further intervention was needed.

Dr. Laframboise initially believed that Ms. Lanctot's hearing loss was caused by the accident, but after reviewing her pre-accident audiograms, concluded that the hearing loss was not related to the accident, but to otosclerosis which was present prior to the accident.¹⁵ In any event, the hearing loss is improved by hearing aids, and Ms. Lanctot did not indicate that the hearing loss has played any part in her inability to work.

Dr. Laframboise wrote to the Ministry of Transportation recommending that Ms. Lanctot's driving license be suspended, because her symptoms of vertigo and her neck restrictions impeded her driving ability. As a result of this information, Ms. Lanctot's driving license was suspended effective January 1996.¹⁶ After examining Ms. Lanctot in July 1996, and after reviewing surveillance tapes provided by the Insurer, Dr. Laframboise decided that she was medically capable of driving, since her vertigo was resolved and her neck movements were significantly improved. Her license was eventually reinstated effective September 1996.¹⁷

In July 1996, Dr. Laframboise stated that although Ms. Lanctot had obviously exaggerated her restrictions, he would give her the benefit of doubt and would not classify her as able to return to work until "late this Spring."¹⁸ It is unclear whether Dr. Laframboise was looking back and asserting that Ms. Lanctot should have been capable of working from the spring of 1996 or looking forward and stating the Ms. Lanctot would be capable of working in the spring of 1997. In any event, I give little weight to his opinion, as he fails to explain the basis for it. Dr. Laframboise was treating Ms. Lanctot for her ear condition. He stated that the surgical interventions were completed, after the March 1996 surgery. Her vertigo and imbalance had ceased by the time he saw her in July 1996. It is unclear on what basis he was asserting that she was disabled after that point.

5) Coccyx

Ms. Lanctot fractured her coccyx (tailbone) in the accident and it healed poorly. This caused her pain, a feeling of numbness or throbbing with prolonged sitting and discomfort when going up and down stairs. Dr. J. P. Lafleche recommended against surgery in January 1996, because of the 50% success rate.¹⁹ She subsequently saw Dr. Yves Boudreau in May 1996, requesting surgical intervention to relieve the pain in her coccyx.²⁰ In September 1996, Dr. Jacques Bouchard wrote a brief note stating that Ms. Lanctot was on the waiting list for surgery, was disabled from working until she had the surgery and would continue to be disabled for four to six weeks after the surgery.²¹ He offered no basis for this opinion and did not outline the symptoms that Ms. Lanctot was experiencing that led to an inability to work. I place little weight on his opinion. Ms. Lanctot testified that scheduled surgery was canceled because of a doctors strike. She saw Dr. Bouchard again in April 1997 at which time Dr. Bouchard recorded that she was "unable to get specific as to whether she wants surgery or a medical report." and that she "wants to wait for surgery."²² Ms. Lanctot's decision to postpone surgery suggests that the pain in her coccyx was not severe. Following the hearing, the parties advised that Ms. Lanctot was scheduled for coccyx surgery on November 23, 1998. Dr. Marangere, who saw Ms. Lanctot frequently in his office, testified that he did not believe that Ms. Lanctot's coccyx problem posed a major limitation.

Psychological

Ms. Lanctot began psychological therapy with Dr. Maxine Morrison in August 30, 1993, to assist her with psychological problems arising from the accident. Ms. Lanctot initially experienced severe bouts of crying and nightmares. She developed a phobia about driving and was unable to tolerate other people drinking around her. Ms. Lanctot testified that she found her therapy with Dr. Morrison helpful. The bouts of crying lessened, although the nightmares continued. Her anxiety about driving improved to the point where she purchased a car and began driving in August 1994. She testified that she mainly drove around Embrun, was reluctant to drive into Ottawa, and feared driving in bad weather. She eventually became able to tolerate other people drinking in her presence.

By November 1995, Dr. Morrison was of the opinion that Ms. Lanctot was not psychologically disabled from returning to work, and that she should attempt a gradual return to work with extensive support.²³

Ms. Lanctot also saw a psychiatrist, Dr. Selwyn M. Smith, at the request of the Insurer. Dr. Smith assessed her on two occasions, in September 1994 and again in June 1996. He concluded that although Ms. Lanctot had a mild degree of dysthmia and a moderate degree of post-traumatic stress disorder, her psychiatric symptoms did not render her disabled.²⁴

Ability to Return to Work

The medical evidence establishes that although Ms. Lanctot suffered serious physical injuries in the accident, these resolved over time, so that by February 1996, no physical or psychological problems were impeding her return to work. Ms. Lanctot's ability to return to suitable work turns on her assertion that her constant chronic pain and the limited range of movement in her neck prevent her from working on a regular basis.

Pain on its own is not compensable in the statutory accident benefit scheme, Nor does a diagnosis of "chronic pain syndrome" guarantee entitlement.²⁵ The central issue is the extent to which the applicant's injuries and pain restrict his or her level of functioning. An applicant's own views about his or her limitations, "no matter how sincerely held, are not determinative."²⁶

Where the Applicant's claim is based primarily on subjective pain complaints, credibility is particularly important. I did not find the Applicant to be a credible witness.

The Applicant consistently failed to report to any medical assessors after the accident that she had severe headaches for several years prior to the accident and had taken large amounts of fiorinol. She failed to mention her pre-existing hearing loss. While these pre-accident medical conditions do not affect her entitlement to benefits, it is clear that the Applicant deliberately failed to mention them out of a misplaced concern that they would affect her entitlement to benefits.

Ms. Lanctot failed to mention relevant information to physicians, leaving the impression that her post-accident social life was quite desolate. For example, in June 1997 she advised Dr. Marangere that she and her husband had separated. In August 1997, she told Dr. Marangere that her husband was living with another woman.²⁷ She did not mention that by June 1997 she had developed a new relationship with a male friend, preferring to leave Dr. Marangere with the impression that her husband had left her for another woman. Similarly, when attending an assessment at the Ottawa Rehabilitation Centre in June 1997, she failed to advise Dr. Buenger that she was separated and that she had developed a new relationship. She also suggested to Dr. Buenger that she had given up all her pre-accident recreational activities.²⁸ She did not advise Dr. Buenger that she still visited the cottage and drove her pontoon boat, which she actually did the next day. While these omissions are minor, they form a pattern on Ms. Lanctot's part, to omit those facts which demonstrate the extent to which she is capable of functioning.

The Applicant's pre- and post-accident medical records indicate a strong tendency to exaggerate her medical condition. Two examples will suffice. First, various medical reports indicate that Ms. Lanctot reported a past history of stomach cancer, surgery and follow-up.²⁹ These reports could only have come from Ms. Lanctot. Dr. Marangere eventually looked into this situation and determined that Ms. Lanctot had never had stomach cancer, or surgery. Rather, she had surgery for an ulcer. Second, after suffering an allergic reaction to medication after the accident, she reported to medial practitioners that she had suffered cardiac arrest as a result of the medication.³⁰

Most importantly, Ms. Lanctot's evidence of her capabilities and limitations differed significantly from her capabilities and limitations demonstrated on video surveillance taken on October 21, 1995, May 21, 1996 and June 13 and 14, 1997.

On October 21, 1995, Ms. Lanctot drove to the grocery store in heavy rain and did her grocery shopping. Her movements getting into and out of the car were fluid. While shopping at the grocery store, Ms. Lanctot repeatedly bent over and was able to reach the lower bins. Her neck movements were fluid and she showed a full range of movement in her neck. Shortly before this, on October 18, 1995, Ms. Lanctot visited Dr. Morrrison, her treating psychologist, and expressed being under stress because of impending surgery.³¹ She acknowledged that stress increases her pain. Despite this general state of stress, on October 21, 1995, Ms. Lanctot experienced no restrictions in neck movement. Shortly afterward on October 30, 1995, she reported significant limitations in the range of movement in her neck to her physiotherapist.³²

On May 21, 1996, Ms. Lanctot was observed from 8.30 a.m. until 9.40 p.m. She confirmed that she attended a medical appointment in Ottawa on that day, which would have required her to get up considerably earlier to drive in from Embrun that morning. Following the medical appointment, she and her sister visited their terminally ill mother in a chronic care facility. They spent some time at the facility, drove to various siblings' homes to visit, and returned to the facility. Video surveillance taken periodically throughout the day shows Ms. Lanctot moving easily into and out of the back seat of a two-door vehicle. She pushed her mother's wheelchair for some distance. At other times she walked with her mother, who used a cane. She supported her mother up the stairs, although her sister was also present and available to assist. She sat for considerable periods of time, without apparent discomfort, without the "donut" cushion and without getting up to stretch and move around. Her neck movements throughout the day were fluid and showed a good range of movement. She spontaneously raised her arms above her head to arrange her hair which was tied up in a ponytail.

On June 13, 1997, Ms. Lanctot was videotaped arriving at the Ottawa Rehabilitation Clinic for an assessment. After the appointment, Ms. Lanctot met her friend, Daniel Berne. Her movements appeared fluid and she showed a good range of motion in her neck. The next day on June 14, 1997 Ms. Lanctot was taped with her friend Daniel Berne, her daughter and her daughter's boyfriend, making preparations to visit the cottage. They stopped at various stores for provisions and departed by boat. Ms. Lanctot moved easily into and out of the vehicle, and demonstrated fluid neck movements.

The surveillance evidence, while not establishing that Ms. Lanctot was capable of sustained work activity on a daily basis, shows significant discrepancies between the restrictions and limitations Ms. Lanctot testified to and demonstrated at the hearing. Dr. Marangere, who testified on the Applicant's behalf, saw the Applicant on a regular and frequent basis from 1995 until the date of the hearing. He testified that whenever he saw the Applicant she presented with such severe restrictions in her neck that she had to move her upper body rather than move her neck. After viewing the surveillance taken on June 13 and 14, 1997 at the hearing, Dr. Marangere stated that he felt "duped." He confirmed that the fluidity of motion and the range of movement of her neck on the video was completely different from what she exhibited in his office. Although he recognized that Ms. Lanctot would likely have good days and bad days, he was clearly surprised that she ever had such good days. Dr. Marangere is not the only doctor to note a significant difference in Ms. Lanctot's presentation in the office and on the videotape.³³

I conclude that Ms. Lanctot's subjective description of her capabilities, restrictions and limitations because of pain are unreliable. The Applicant also relied heavily on the medical opinions of Dr. Marangere, Dr. Buenger and Dr. Wexler. As these doctors relied upon Ms. Lanctot's descriptions of her pain and abilities to base their conclusions of total disability, they are equally unreliable. While Dr. Marangere's written opinion of total disability was based partially on objective findings of muscle spasms and trigger points upon examination, he relied heavily on Ms. Lanctot's complaints and pain and his observation of her limited movements in his office.

Dr. Buenger, a specialist in physical medicine and rehabilitation, testified that she assessed Ms. Lanctot as incapable of performing competitive employment.³⁴ Her opinion was based on her one hour assessment of Ms. Lanctot on June 13, 1997, as well as her review of Ms. Lanctot's participation in the Pain Clinic from February to April 1998. As discussed earlier, immediately after the assessment of June 13, 1997, Ms. Lanctot was observed by surveillance personnel, and exhibited quite fluid movements. Therefore, I find Dr. Buenger's assessment of quite restricted range of movement earlier that day is unreliable. Further, Dr. Buenger stated that based on the limitations demonstrated by Ms. Lanctot, and based on her need for daily naps, Dr. Buenger did not think that Ms. Lanctot could work even one day a week helping seniors. Yet the video of May 21, 1996 showed Ms. Lanctot functioning for a very long day while assisting her invalid mother. In addition, Dr. Buenger refused to acknowledge that the value of her opinion would be lessened if the facts upon which it was based were found to be untrue. She steadfastly maintained that she believed Ms. Lanctot to be truthfully representing her limitations and therefore, Ms. Lanctot was disabled from working. In stating her support of Ms. Lanctot, Dr. Buenger moved from being an objective witness, to being an advocate for Ms. Lanctot and the weight of her evidence is further weakened.

Dr. Wexler's Report of May 28, 1998 confirmed that Ms. Lanctot suffered from chronic jaw pain which he believed would make it difficult for her to hold down a job for any length of time.³⁵Dr. Wexler's opinion is based on Ms. Lanctot's complaints of pain. As I have already found Ms. Lanctot's subjective complaints of pain to be an unreliable indicator of her capacities, I give his opinion little weight.

Dr. Paul Greenacre, a dentist, examined Ms. Lanctot in January 1996 at the request of the Insurer and concluded that she would be incapable of working because of her "frozen jaw."³⁶ As his opinion is based on Ms. Lanctot's reports of pain and limitation, I also give his opinion little weight. Further, he does not explain how her jaw limitation impedes her ability to work. Finally, based on Ms.Lanctot's own evidence, her jaw pain was less disabling than her neck and shoulder pain, and I have already found that she consciously exaggerated those limitations.

Dr. Reda El-Sawy, a physiatrist chosen by the insurer, initially opined in February 1996, that Ms. Lanctot was disabled from working, but after viewing the surveillance evidence, abruptly changed his opinion.³⁷ Both counsel agreed that Dr. El-Sawy's opinion should be given little weight. Dr. David M. Atack, a neurologist recommended by the family doctor, concluded that Ms. Lanctot had suffered a cerebral concussion in the accident, resulting in post-traumatic syndrome.³⁸ This conclusion appears to be based, at least in part, on the fact Ms. Lanctot told him she suffered a period of unconsciousness at the time of the accident. The hospital records from Montreal General Hospital do not confirm any period of unconsciousness. Dr. Atack did not offer an opinion on Ms. Lanctot's capacity to work.

The Applicant also relied on a neuropsychological assessment performed by Dr. Pamela Cooper, a psychologist in Clinical Neuropsychology. The assessment was carried out between February 19, 1996 and April 21, 1997, for the purpose of considering Ms. Lanctot's suitability for the pain management clinic. The assessment period was protracted by the time needed for Ms. Lanctot to obtain written confirmation of her educational status. The assessment indicated that Ms. Lanctot's verbal IQ was in the borderline range at the 2nd percentile, her performance IQ was in the borderline range at the 3rd percentile and her full scale IQ was within the impaired range at the lst percentile. This surprising conclusion does not accord with the Applicant's presentation at the hearing, where she gave evidence in a reasonably coherent fashion over two days. Nor does it accord with her past work experience. Dr. Marangere, who saw her frequently, suggested that an impaired mental rating did not accord with common sense. The surprisingly low IQ rating can only be explained by the assessor's findings that Ms. Lanctot's behaviour during the assessment suggested insufficient or poorly sustained effort, and that she did not always perform to her maximum capability.³⁹ Thus, I give the neuropsychological assessment little weight. I note as well that the Ottawa Rehabilitation Centre apparently gave the report little weight, as the assessor suggested that Ms Lanctot would not benefit from the pain management program without significant emotional and cognitive support. Yet Ms. Lanctot attended in April 1998, without any cognitive support.

The only objective evidence of Ms. Lanctot's capabilities is the functional capacity evaluation conducted on December 4 and 5, 1995.⁴⁰ Although the physiotherapist noted several inconsistencies in Ms. Lanctot's performance, suggesting that the she underepresented her abilities, the results of the assessment still supported a conclusion that Ms. Lanctot was capable of working at a sedentary level.

Dr. Lynn MacGregor, an assessor chosen by the Insurer, assessed Ms. Lanctot in June 1995 and opined that Ms. Lanctot was capable of attempting a part-time return to work trial at that time with some restrictions. In her opinion, having regard to the Applicant's level of education, work history and skills, the Applicant would be capable of performing the tasks of an office clerk, sales person, dispensary assistant and clerical work combined with cashier. She had reservations about the Applicant's abilities to perform work as a cook, waitress or full time cashier because of the heavy lifting, stooping, squatting and repetitive reaching involved in those jobs.⁴¹ After reviewing the results of the functional capacity evaluation, Dr. MacGregor confirmed her opinion that Ms. Lanctot should be capable of performing the tasks of secretary-clerk-receptionist positions. She suggested that the position of bank teller would be difficult because of the prolonged standing, unless Ms. Lanctot were to be provided with a stool.⁴²

I give Dr. MacGregor's opinion considerable weight. It is the only medical opinion which relies primarily on the relatively objective findings of the functional capacity evaluation, rather than on the entirely subjective limitations suggested by Ms. Lanctot.

Resistance to Rehabilitation Efforts and Lack of Motivation

In November 1994, Ms. Lanctot was referred to the Ottawa Rehabilitation Centre for admission to the pain management clinic. When she was assessed at the Ottawa Rehabilitation Centre for her suitability for the program, she claimed she was reluctant to attend as an inpatient, because of the impact on her husband.⁴³ She underwent a psychological assessment in January 1995, and again expressed fear that her husband would leave her if she were in the program for six weeks. As a result, her application for the inpatient program was put in abeyance.⁴⁴ It should be noted that her husband testified that he supported Ms. Lanctot's attendance at the program and was not aware of her reluctance to attend. Indeed, at the hearing Ms. Lanctot herself denied expressing those concerns, recorded by three separate doctors.

In December 1995, shortly before the third anniversary of the accident, and the likely termination of benefits, she requested an immediate admission to the inpatient program, on the recommendation of her lawyer. Because of the extreme volatility of her presentation, she was referred for a neuropsychological assessment.⁴⁵ This began in February 1996 and for various reasons was not completed until April 1997. The neuropsychologist concluded that Ms. Lanctot's ability to benefit from the program was questionable without significant cognitive and emotional support.⁴⁶ However, two months later in June 1997, she was assessed by Dr. Buenger, who recommended admission to the program.⁴⁷ In September 1997 she was assessed by a physiotherapist who also recommended admission to the program, and she was placed on a waiting list.⁴⁸ She finally attended the Rehabilitation Centre, as an outpatient, from February 1998 to April 1998. She missed at least six days due to travel problems, weather, illness and high pain levels.⁴⁹ The goal at the Rehabilitation Centre is not to assist in any return to work, but simply to learn pain management techniques.

To the extent that this program was useful in learning to manage her pain and possibly a first step in returning to work, I find that Ms. Lanctot unreasonably refused to participate in the program in late 1994 early 1995. Other evidence of her resistance to rehabilitation efforts are recorded in her psychologist's clinical notes and records. In May 1994, Dr. Morrison recorded that Ms. Lanctot was asked to consider rehabilitation but was resistant. In September 1994, she recorded that she was "concerned will be forced to work vs her agenda." In September 1995, she recorded that Ms. Lanctot was "driving more but does not want to progress 'too much' in case insurance cuts off assistance." She also felt that Ms. Lanctot was slowing her own progress.⁵⁰ At the hearing, Dr. Marangere testified that Ms. Lanctot seemed to suffer a complete lack of motivation to return to work.

Conclusion:

I find that Ms. Lanctot was capable of a gradual return to sedentary work by December 1995. I find that work as a sales clerk, secretary, receptionist (with a telephone assistance device), or bank teller (with a stool) is suitable, having regard to Ms. Lanctot's past work experience. Had Ms. Lanctot begun a gradual return to work trial in December 1995, as recommended by Dr. Morrison and Dr. MacGregor, I find that she would likely have been capable of returning to full time employment by February 25, 1996, the third year anniversary of the accident. Ms. Lanctot unreasonably refused to participate in a pain management clinic in late 1994/early 1995. She did not attempt any return to work after 1994. I find her failure to return to work after February 1996 is more likely related to her own lack of efforts in rehabilitating herself rather than due to her injuries from the accident. Thus, the Applicant has failed to establish on a balance of probabilities that her injuries from the accident continuously prevented her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience, after February 26, 1996.

However, on March 21, 1996 the Applicant underwent further ear surgery to repair the damage caused by the motor vehicle accident. Assuming a normal recovery from surgery of six weeks, I find that Ms. Lanctot would have been unable to engage in any employment for six weeks after the surgery of March 21, 1996, and is therefore entitled to weekly income benefits for those six weeks.

Interest:

In accordance with subsection 24(4) of the Schedule, interest is payable on the above benefits at the rate of two per cent per month.

Expenses:

The parties may make submissions on expenses within three weeks of the date of this decision. Each party shall have one week to reply to the submissions of the other party.

January 18, 1999

M. Kaye Joachim Arbitrator

Date