Neutral Citation: 1999 ONFSCDRS 111

FSCO A97-001642

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SOULA NITSOPOULOS

Applicant

and

GENERAL ACCIDENT ASSURANCE CO. OF CANADA

Insurer

REASONS FOR DECISION

Before:

Joyce Miller

Heard:

March 15, 16, 18, and 19, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

L. Brent Vickar for Mrs. Nitsopoulos

Alan L. Rachlin for General Accident Assurance Co. of Canada

Issues:

The Applicant, Soula Nitsopoulos, was injured in a motor vehicle accident on June 18, 1992. She applied for and received statutory accident benefits from General Accident Assurance Co. of Canada ("General Accident"), payable under the Schedule.¹ General Accident terminated weekly income benefits on May 11, 1997. The parties were unable to resolve their disputes through mediation, and Mrs. Nitsopoulos applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Nitsopoulos entitled to weekly income benefits pursuant to subsection 12(5) of the Schedule from May 12, 1997 and ongoing?

2. What is the correct amount of the weekly income benefit pursuant to subsection 12(4) of the Schedule?

3. Is General Accident entitled to repayment of benefits already paid pursuant to section 27 of the Schedule?

4. Is General Accident entitled to a deduction from the weekly income benefit pursuant to section 15 of the Schedule?

5. Is Mrs. Nitsopoulos entitled to interest on any amounts owing?

6. Is Mrs. Nitsopoulos entitled to her expenses incurred in this arbitration proceeding?

7. Is General Accident entitled to its expenses incurred in this arbitration proceeding?

Result:

1. Mrs. Nitsopoulos is entitled to weekly income benefits from May 12, 1997 and ongoing.

2. The correct amount of Mrs. Nitsopoulos' weekly income benefit is $311.66.

3. General Accident is not entitled to repayment of weekly income benefits already paid.

4. General Accident is not entitled to a deduction from the weekly income benefits owing.

5. Mrs. Nitsopoulos is entitled to interest on amounts owing.

6. The issue of expenses may now be spoken to.

EVIDENCE AND ANALYSIS:

Background:

Mrs. Nitsopoulos is 51 years old. She has been married for 31 years and has no children. She was born in northern Greece and grew up on a farm. She has two older sisters and a brother.

When Mrs. Nitsopoulos was eight years old, her mother died suddenly of a ruptured appendix. Her older sisters looked after her and became surrogate mothers. After Mrs. Nitsopoulos finished grade six in school, she began to work on the family farm.

In September 1966, when she was 19 years old, Mrs. Nitsopoulos emigrated to Canada to join her fiancé. Within a few days of arriving in Toronto she got a job on the assembly line in a sock manufacturing factory.

In the spring of 1967 Mrs. Nitsopoulos married her fiancé and began to work in an electronics company, manufacturing car radios. She worked at this job for five years.

Mrs. Nitsopoulos' next job was for a jewellery manufacturer, where she worked for almost 10 years.

In about 1981, Mrs. Nitsopoulos started working in the family's restaurant business, Villa Nova. Her husband, who is a cook, was a one-sixth partner in this business, along with other family members. Mrs. Nitsopoulos began to work as a bartender and subsequently worked as a waitress. Around 1987 the Villa Nova was sold and Mrs. Nitsopoulos worked for another family restaurant, "JJ's," which was located in a hotel. Her husband was also a one-sixth partner in this business. Mrs. Nitsopoulos worked as a waitress in this restaurant until her car accident on June 18, 1992.

The Accident:

At the time of the accident, Mrs. Nitsopoulos was driving home from work at about 10:00 p.m. She was travelling at 100 kilometres an hour, in the middle lane, on Highway #401 when her vehicle was suddenly struck on the driver's side. She lost control of her car. It spun around several times on the highway coming to rest on the shoulder of the road.

Mrs. Nitsopoulos testified that on impact, and when her car spun out of control, she believed that she was going to die. She stated that when she arrived by ambulance at the York-Finch General Hospital, a nurse told her not to move because she might become paralyzed and that this terrified her.

Mrs. Nitsopoulos testified that as a result of the accident she suffered both physical and psychological injuries. Her physical injuries included soft tissue injuries to her neck, the left side of her back, chest and left knee. Because of the accident she now suffers from severe headaches and dizziness, numbness in her left hand and constant neck and back pain.

Mrs. Nitsopoulos also testified that she suffered a severe emotional trauma. After the accident she became fearful and depressed and cried a lot. She has become hypersensitive to what people say to her and is afraid to go out into crowds. Except for going to church and visiting with her sister, she does not socialize any more, something she loved to do before the accident.

Mrs. Nitsopoulos testified that on some days she feels better and goes out. She visits with her sister, who lives across the street, takes walks, does some shopping with her sister, and sometimes drives her van. Other days, she does not want to see anyone or do anything. She stays in bed or lies on the couch all day without even bothering to shower. She testified that her sister helps her out a lot and stays over on nights when her husband is working.

Mrs. Nitsopoulos submitted that as a result of the accident she can no longer work at her job as a waitress, or at any other job.

Essential Tasks:

The restaurant Mrs. Nitsopoulos worked at had a seating capacity for 155 people, plus 20 to 26 additional capacity on the patio. Mrs. Nitsopoulos testified that she usually began work at 11:00 a.m. and finished at 10:00 p.m. In summer, she finished at midnight and if it was her turn to close the restaurant she worked until 1:30 or 2:00 a.m. Mrs. Nitsopoulos covered both the lunch-hour rush and the dinner shift. After the lunch-hour rush, the other waitress on the shift would leave and Mrs. Nitsopoulos remained to serve mid-afternoon customers, take care of any deliveries, and attend to the bar. She would also vacuum the restaurant and, in summer, she would clean the patio tables if they were dusty.

During meal times, Mrs. Nitsopoulos would take the customers' food orders, pour water, get anything the customers needed from the bar and then get bread, soup and salad from the kitchen. She would then serve the main meal as well as the dessert and coffee. After the meals, she would clean up the tables and re-set them. Since the restaurant was in a hotel, Mrs. Nitsopoulos would also deliver meals ordered from room service. If it was her turn to close the restaurant, she would bring in all the coffee creamers and coffee pots into the kitchen to be washed and she would set up the tables for breakfast.

Medical Evidence:

After the accident, Mrs. Nitsopoulos went to see her family doctor, Dr. C. Vozis. Her chief physical complaints after the accident were pain and stiffness in her neck, headaches, dizziness, and low back pain. Dr. Vozis prescribed Tylenol #2, Naprosin, and Valium. Mrs. Nitsopoulos continued to see Dr. Vozis for several months with the same complaints. In September 1992, General Accident sent Mrs. Nitsopoulos for an insurer's examination with Dr. M. Hall, an orthopaedic surgeon. In his report to General Accident on October 1, 1992, Dr. Hall stated that his physical examination of Mrs. Nitsopoulos "suggests that there is a strong element of exaggeration in her complaint, but I believe that she is sore in her neck and back as she states. Her work is quite demanding and I think that she is not presently fit to return to it. She is to start on physiotherapy, which I hope will comprise an active exercise program..! believe that she will be fit to return to her previous work in six weeks time."

Mrs. Nitsopoulos began going to physiotherapy five times a week. She testified that the treatments only had a temporary effect on her. After attending physiotherapy for six months, she discontinued the treatments and began undergoing chiropractic treatment.

By January 1993, Mrs. Nitsopoulos' pain and the effects of the trauma of the accident were beginning to have a strong psychological effect on her. Dr. Vozis' clinical notes for January 8, 1993 indicate that Mrs. Nitsopoulos was very depressed, crying, and complaining of headaches, dizziness, and pain in her neck and low back. On examination, he notes that she appeared to be a "nervous person." An appointment was made for her with a psychiatrist, Dr. S. Patmanidis, for March 31, 1993.

In his report of April 1, 1993, Dr. Patmanidis stated that Mrs. Nitsopoulos had reported that she was feeling quite depressed, tired, and very anxious. She was fearful of driving and had been experiencing anxiety attacks with palpitations. She was sleeping poorly and her appetite was reduced. She was also quite distressed because she had lost her sense of enjoyment. She was very withdrawn and avoided socializing, something that she used to enjoy.

Dr. Patminidis encouraged Mrs. Nitsopoulos to continue driving regularly. He prescribed Prozac for her depression and Ativan, to be taken a half hour prior to driving if her anxiety level was very high.

Dr. Patmanidis' prognosis in her case was guarded at that time. He judged her "to be totally disabled and unable to return to any type of occupation indefinitely." He recommended further assessment and treatment.

In June 1993, General Accident sent Mrs. Nitsopoulos to see Dr. A.M. Galea, a doctor of sport medicine. In his report of June 18, 1993, Dr. Galea stated that Mrs. Nitsopoulos had sustained a mild to moderate soft tissue strain of her neck and back, but overlying this was a significant degree of anxiety and deconditioning. In his view, the deconditioning was most likely due to the fact that she had been off work for such a long time. Dr. Galea felt that Mrs. Nitsopoulos should undergo a six-week work-hardening program, and thereafter she should be able to return to her work as a waitress, with no restrictions.

A month later, Mrs. Nitsopoulos attended a rehabilitation assessment with the Canadian Back Institute ("CBI"). In its report of July 19, 1993, the CBI made the following observations and recommendations:

During the assessment, Ms. Nitsopoulos at frequent times became very teary indicating that she was very depressed and upset about her present symptoms. She appeared to be extremely focused on her pains [sic] symptoms throughout the assessment. Ms. Nitsopoulos tested positive for all pain magnification/pain behaviour tests performed. She also demonstrated extremely inconsistent effort with muscle power testing as well as inconsistent ranges of motion during formal assessment versus casual observation.

The CBI recommended that Mrs. Nitsopoulos undergo a Functional Capacity Evaluation ("FCE"). As well, it recommended that she receive psychological counselling to help her work through her depression.

Three weeks after the CBI assessment, General Accident sent Mrs. Nitsopoulos for a psychiatric evaluation with Dr. L. Murphy.

In his report of August 6, 1993, Dr. Murphy stated that Mrs. Nitsopoulos' mental status examination revealed:

...a small nervous looking woman constantly writhing in her chair trying to find a comfortable position and breaking down in tears especially at those times when her accident was mentioned. At one point, she had to leave the room to vomit in the midst of anxiety. Her voice was full of sadness and fear about her future and her emotions tended towards sadness and anxiety. Her affect was consistently at a high pitch with swing from anxiety, anger and sadness to fear...There was some difficulty in communicating with her because her English was only fair. That meant that the subtleties of her psychology were not available to the interview but at least the facts were.

Dr. Murphy diagnosed Mrs. Nitsopoulos as suffering from a major depressive disorder intimately combined with a post-traumatic stress disorder. He stated that she was "certainly involved in very serious illness behaviours such as seeking considerable assistance from secondary sources, avoiding any coping mechanisms that seem to be of use or any situations that could possibly result in more pain and physically exaggerating the impact of the pain on her person."

Dr. Murphy stated that it was his view that Mrs. Nitsopoulos' post-traumatic stress disorder and other symptoms were related to the accident. In his view, there was "no doubt that [Mrs. Nitsopoulos] had a phobic reaction to driving and a traumatic relationship to the events of the accident itself." As well, he stated that Mrs. Nitsopoulos' "personality construction which is dependent and somewhat inadequate puts her at a higher risk for this sort of presentation. Contributing factors are that she has no children and that she lost her mother in a sudden traumatic way as a child."

Dr. Murphy expressed the view that the trauma of the accident had more of a psychological than a physical impact on Mrs. Nitsopoulos and that this needed to be reflected in her treatment.

Dr. Murphy recommended that Mrs. Nitsopoulos be strongly encouraged to get back to work and that she be supported with psychological and psychiatric treatments, as well as an exercise program to improve her physically deconditioned state. In his prognosis, Dr. Murphy stated that Mrs. Nitsopoulos' recovery will be slow because "she is quite a brittle personality." As far as her return to work is concerned, Dr. Murphy's view was that "a compromise has to be made between complete avoidance and complete reimmersion. Neither will be good for her and things have to be taken gradually. She has to maintain some control and as she is rather a controlling woman, that will be a difficult process."

At the end of September 1993, General Accident contacted Ms. Sharon Green, a chronic pain specialist, to assist in improving Mrs. Nitsopoulos' functional abilities within her home setting.

In her report of December 3, 1993, Ms. Green stated that she contacted Mrs. Nitsopoulos on November 1, 1993. Ms. Green stated that Mrs. Nitsopoulos was reluctant to see her and had told Ms. Green to speak to her doctor as she was already receiving therapy. Ms. Green contacted Mrs. Nitsopoulos' new family doctor, Dr. A.E. Jones, and an appointment was made with Mrs. Nitsopoulos through his office for November 3, 1993.

Ms. Green noted in her report that on the November 3rd visit, throughout her session with Mrs. Nitsopoulos, "she tended to cry, went to the washroom to vomit two times, and alternated between lying down, sitting up and walking around." When Ms. Green suggested that they work together in the kitchen, as a form of occupational therapy, the report comments that Mrs. Nitsopoulos became angry and cried "I'm not mental." "I'm not a baby." "I'm scared." "My back is killing me." "He tried to kill me," the last remark referring to the driver of the car that hit her.

Although Mrs. Nitsopoulos was unwilling to work with Ms. Green that day, she agreed to see her again on November 10th. In her report Ms. Green stated that when she arrived, Mrs. Nitsopoulos had her head covered with a kerchief and alternately sat, or lay on the couch covering her entire body, including her head, with blankets. In the half hour that she was there, Mrs. Nitsopoulos went to the washroom and vomited once. Ms. Green stated that when Mrs. Nitsopoulos returned from the washroom, "she talked about the fact that she had no children and the realization that she will never have any children, and therefore who will take care of her in her old age."

After this second session with Mrs. Nitsopoulos, Ms. Green informed General Accident that she felt that there was no sense in attempting to work with Mrs. Nitsopoulos at that time.

On March 28, 1994, General Accident sent Mrs. Nitsopoulos for a psychological assessment with Dr. L.A. Mermigis. In his report of March 28, 1994, Dr. Mermigis concluded that Mrs. Nitsopoulos was suffering from a post-traumatic disorder and major depression. Although he acknowledged that earlier traumas such as the childhood loss of her mother and that the fact that she was infertile might have increased her vulnerability and predisposed her to these problems, nevertheless it was his view that these problems had arisen as a consequence of her motor vehicle accident.

It was Dr. Mermigis' opinion that Mrs. Nitsopoulos' "psychological disfunction" not only prevented her from working, but also limited her ability to function independently in daily living.

Dr. Mermigis stated that Mrs. Nitsopoulos felt ashamed about her current psychological status, and had expressed a fear that friends and neighbours would view her as a pathetic, incapacitated, childless woman, who would be pitied. For this reason, Dr. Mermigis recommended that assistance to Mrs. Nitsopoulos in and about her home be withdrawn. He recommended, instead, that she embark on weekly psychological treatment which would take place outside of her home. He stated that other professionals should "initially minimize their involvement with the client, as she is easily overwhelmed." He stated that once some improvement to her symptoms was noted, her rehabilitation consultant could become more actively involved and her need for further services be evaluated.

In July 1995, General Accident sent Mrs. Nitsopoulos for a psychiatric assessment with Dr. M. Bail. In his reports of July 25, 1995, Dr. Bail stated that Mrs. Nitsopoulos was currently in the midst of a major depressive disorder. It was his view that she was disabled from performing her prior job-related duties and performing most homemaking chores. Also, he found that she was exhibiting some elements of post-traumatic stress disorder, but that her depression was more significant, both clinically and psychologically.

Dr. Bail felt that although the motor vehicle accident of June 18, 1992 was a traumatic event for Mrs. Nitsopoulos, nevertheless, it only played a small part in her psychological disability. It was his view that an average individual involved in a similar accident would not be experiencing the same degree of psychological disability and incapacitation three years post-accident. In his view the traumatic early loss of her mother and the fact that she was infertile were major factors in Mrs. Nitsopoulos' development of her depression and psychological disability.

Dr. Bail's prognosis for Mrs. Nitsopoulos remained guarded. He stated that "although the financial rewards from the insurance company are minimal in her case, she is reaping considerable secondary gain through the overwhelming support and attention given to her by her sisters and husband for remaining in the 'sick role'. This situation will be very difficult to change, and is not likely to respond to pharmacotherapy."

In April 1997, General Accident sent Mrs. Nitsopoulos for a psychological examination with Dr. R.P. Bernstein. In his report of April 22, 1997, Dr. Bernstein concluded that Mrs. Nitsopoulos remains psychologically disabled from returning to the essential tasks of her pre-motor vehicle accident activities. It was Dr. Bernstein's opinion, however, that given Mrs. Nitsopoulos' "pre-existing characterological structure, coupled with her life experiences and her psychosocial circumstances...Ms. Nitsopoulos was very likely to have developed a similar psychological profile in response to other stressors even if the subject motor vehicle accident had not occurred."

On the basis of Dr. Bernstein's report, General Accident terminated Mrs. Nitsopoulos' weekly income benefits on May 11, 1997.

After General Accident terminated Mrs. Nitsopoulos' benefits, she continued to see Dr. Patmanidis. In his report of September 25, 1997, Dr. Patmanidis stated that Mrs. Nitsopoulos had been under his care since March 31, 1993 and that she had been receiving treatment for a post-traumatic stress disorder superimposed on a major depression. He noted that Mrs. Nitsopoulos had also been experiencing chronic pain in her cervical and lumbar spine, as well as post-traumatic headaches. In his view these pscho-physical problems developed as a result of the car accident.

Dr. Patmanidis stated that Mrs. Nitsopoulos' psychological and physical symptoms rendered her totally incapacitated and unfit to work. In spite of intensive psychological as well as physical therapies, her response to treatment has been poor. It was his view that Mrs. Nitsopoulos' prognosis remained poor because of the chronicity of her condition and "refractoriness" to treatment. He expected her to remain permanently disabled and to continue to require long-term psychiatric follow up.

In a report of January 12, 1998 to Mrs. Nitsopoulos' lawyer, Dr. Patmanidis commented on Dr. Bernstein's report. He disagreed with Dr. Bernstein's conclusion that Mrs. Nitsopoulos' psychiatric condition was not related to the motor vehicle accident. Dr. Patmanidis reiterated his opinion that Mrs. Nitsopoulos had developed "a post traumatic stress disorder with major depression, super imposed in addition to her chronic pain syndrome which had developed secondary to her physical injuries."

Dr. Patmanidis pointed out that prior to the accident Mrs. Nitsopoulos was functioning "quite normally, both psychologically and occupationally." He reiterated his view that the motor vehicle accident had "been severe enough to render [Mrs. Nitsopoulos] totally disabled and incapable in engaging in any occupation on a permanent basis."

At the request of her counsel, Mrs. Nitsopoulos underwent a psychiatric assessment with Dr. A.N. Hanick. In his very detailed report of November 20, 1998, Dr. Hanick concluded that as a result of her motor vehicle accident "it is quite evident and clear that Mrs. Nitsopoulos had suffered a quite frightening and fear-inducing experience in which she had feared for her very survival." Dr. Hanick stated that "there may have been some degree of emotional susceptibility and vulnerability to the frightening nature of her accident." He went on to state, however, that despite her emotional vulnerability, Mrs. Nitsopoulos would not be suffering from the "now quite significant and severe and disabling set of post-traumatic symptomatologies" were it not for the motor vehicle accident and the "intense fright" which it caused. Dr. Hanick concluded:

...in [Mrs. Nitsopoulos'] present state, it is evident and clear that she cannot be returned to her previous work as a waitress nor to any other type of work for which she has aptitude or experience or training and, indeed, again in her present state, it is not at all seen that she could obtain nor maintain any type of employment, on any schedule whatsoever. She has been left fully and completely disabled in terms of the workplace.

Dr. Hanick further stated that "Mrs. Nitsopoulos has not experienced any symptomatic nor functional improvement and, as a consequence, ...her prognosis has grown quite bleak and quite pessimistic and very guarded."

On October 15, 1998, General Accident sent Mrs. Nitsopoulos for a psychiatric assessment with Dr. H.C. Stancer. In his report of that same date, Dr. Stancer concluded that Mrs. Nitsopoulos was not suffering from a post-traumatic stress disorder or from depression. Dr. Stancer, however, stated that her "psychological behaviour is certainly not normal." It was his view that Mrs. Nitsopoulos' behaviour was more suggestive of a histrionic behaviour that was associated with a long-standing personality disorder, which preceded the motor vehicle accident.

In a follow-up report dated January 5, 1999, Dr. Stancer stated that after reviewing the surveillance evidence and various medical reports, it was his opinion that Mrs. Nitsopoulos was simulating a mental disorder. He concluded that Mrs. Nitsopoulos was engaged in a "conscious feigning for the purpose of secondary financial gain."

I am not persuaded by Dr. Stancer's opinion that Mrs. Nitsopoulos was feigning her disability. For example, according to Dr. Stancer the surveillance showed that Mrs. Nitsopoulos drove her car and her van "frequently" and with "great facility" and therefore she could not be suffering from a post-traumatic stress disorder. However, in my view, one cannot reasonably infer from the surveillance that Mrs. Nitsopoulos drove on a frequent basis. Mrs. Nitsopoulos was under surveillance for 23 days, over a period of four years. During this time, however, she was only seen driving on six different days, mostly for short periods of time and usually accompanied by someone. As well, when commenting on Mrs. Nitsopoulos' "great facility" in driving, Dr. Stancer seemed to have ignored the surveillance observations that she was an erratic driver.

According to Dr. Stancer Mrs. Nitsopoulos was not suffering from depression "because it is certainly not supported by her vigorous and definite behaviour throughout...[the surveillance] videotapes." Again, I am not persuaded that this comment fairly reflects the surveillance evidence. In my view, the surveillance evidence, which will be discussed in greater detail below, supports Mrs. Nitsopoulos' submission that she spent a lot of time at home. Her outings tended to be limited to visits and errands in the company of her sister. In my view, the surveillance does not support a finding that Mrs. Nitsopoulos was engaged in sustained "vigorous and definite behaviour" that would lead one to conclude she was feigning her disability.

Findings:

Mrs. Nitsopoulos is claiming entitlement to weekly income benefits pursuant to paragraph 12(5)(b)² of the Schedule from May 12, 1997 and ongoing, on the basis that she sustained a psychological injury as a result of the car accident on June 18, 1992 which continuously prevents her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience.

Before discussing the substantive issue of entitlement I will first deal with the issues of credibility that General Accident raised in its defence of Mrs. Nitsopoulos' claim for benefits.

Credibility:

General Accident submitted that Mrs. Nitsopoulos' claim that she was substantially disabled pursuant to subsection 12(5) of the Schedule lacked credibility and that this is supported by the surveillance and the medical reports. Specifically, General Accident submitted that Mrs. Nitsopoulos lied to some of the medical practitioners who saw her after the accident when she told them that she could not drive her car because of the accident; and also lied when she told them that she did not suffer from any psychiatric illness prior to the accident.

After reviewing all of the evidence, including Mrs. Nitsopoulos' testimony at the hearing, I find that Mrs. Nitsopoulos was a credible witness.

1. Demeanor at the Hearing

At the hearing, Mrs. Nitsopoulos gave her evidence in a credible manner. Although she was highly emotional, she responded consistently to all questions in chief and cross examination. I found that her testimony and behaviour at the hearing was consistent with her presentation as described in the reports of the medical practitioners and case managers.

At times, when Mrs. Nitsopoulos was being questioned, she broke down and cried and seemed in genuine despair. At other times when Mrs. Nitsopoulos was listening to the other witnesses' evidence she would moan, appear anxious, pound her chest, and kiss the cross that hung around her neck. At other times she would sit quietly with a distressed expression on her face. While I found that there were some elements of exaggeration and overreaction in Mrs. Nitsopoulos' presentation, I did not find this sufficiently material to impugn her credibility on the substantive issues of her claim.

2. Surveillance

General Accident placed Mrs. Nitsopoulos under surveillance from 1992 through 1995. In total, Mrs. Nitsopoulos was under surveillance for 23 days.

I find that Mrs. Nitsopoulos' credibility was not materially impugned by the video surveillance showing her driving, although she had reported to some of the medical practitioners that since the accident she was fearful of driving. The surveillance shows Mrs. Nitsopoulos driving only for short periods of time in her neighbourhood and usually accompanied by a family member. I find that the incident reported on April 19, 1995, when the investigator observed Mrs. Nitsopoulos driving slowly on Sheppard Avenue East, with her hazard lights on, then parking her van and taking a taxi, supports Mrs. Nitsopoulos' evidence that she becomes nervous when driving.

In his report of April 1, 1993, Dr. Patmanidis acknowledged Mrs. Nitsopoulos' fear of driving and recommended that "she continue driving regularly, so that she can desensitize herself and overcome her fear." He suggested that she take Ativan sublingually a half hour prior to driving if her anxiety level was very high. At that time he "anticipated that [Mrs. Nitsopoulos'] fear of driving should gradually subside within the next year or more. While her fear of driving has not subsided, in my view, Dr. Patmanidis' report, nevertheless, supports Mrs. Nitsopoulos' evidence that she was fearful of driving, but was encouraged to drive.

As well, I find that the surveillance does not support General Accident's submission that Mrs. Nitsopoulos was feigning her disability.

For example, on April 29, 1993, the investigator observed Mrs. Nitsopoulos placing a jug of windshield washer fluid, which the investigator had described as being a "heavy item," into the trunk of a car. General Accident submitted that I should conclude from this that Mrs. Nitsopoulos was stronger than she claimed to be and was feigning disability. However, after viewing the video, I find that the jug of windshield washer fluid did not appear to be heavy at all. In fact the jug appeared to me to be almost empty.

In his report the investigator suggested that Mrs. Nitsopoulos appeared disabled because she was aware that she was under surveillance and was feigning disability for the benefit of the investigator. In his report on April 30, 1993 the investigator noted the following behaviour of Mrs. Nitsopoulos when she entered her car.

She was...observed boarding the vehicle in a slower than normal fashion. She started the car and was observed securing her seat belt once again in a slow and laboured fashion. In fact, the subject appeared to be exaggerating her difficulty as she utilized both hands to pull the seatbelt shoulder strap across her body.

After viewing the tape I was not persuaded that one can conclude that Mrs. Nitsopoulos' actions were performed for the benefit of the investigator. In my view, the video surveillance shows that Mrs. Nitsopoulos is in genuine physical discomfort. On several occasions she seems to be automatically and without pre-meditation reaching with her hand to touch her back, as if it were a source of discomfort.

In his report on April 8, 1995, the investigator stated that he observed her "kicking a garbage bag up her driveway utilizing her left foot." General Accident submitted that kicking the garbage bag was another example of how strong Mrs. Nitsopoulos really was and that she was feigning disability.

After seeing the video surveillance I am not persuaded that one can conclude that Mrs. Nitsopoulos was engaged in a physically strong kicking action. First, Mrs. Nitsopoulos was wearing black "flip flop" slippers, and if she had been kicking the bag vigorously, the slipper would have come off. Second, the bag that she was kicking appeared to be small and light. The distance she was allegedly kicking the bag was quite short.

In conclusion, I find that the surveillance generally confirms Mrs. Nitsopoulos' evidence that she was active on her good days, but that on other days she could not get out of bed or go out of the house. I note that Mrs. Nitsopoulos was under surveillance for 23 days. However, the investigator only saw her leave her house on about eight of those days.³ Taken as a whole, in my view, nothing in the surveillance showed Mrs. Nitsopoulos engaged in continuous strong physical activity. Nor was there any evidence of Mrs. Nitsopoulos working at some job or even heavy housework. Accordingly, I do not find that the surveillance supports General Accident's submission that Mrs. Nitsopoulos was feigning her disabilitiy.

3. Lying about pre-accident psychiatric illness

General Accident submitted that prior to the accident Mrs. Nitsopoulos was suffering from a psychiatric illness and that after the accident she lied to the medical practitioners by denying this fact. General Accident submitted that this also undermines Mrs. Nitsopoulos' credibility. In support of its submission General Accident presented the clinical notes of Dr. Vozis.

The clinical notes of Dr. Vozis indicate that Mrs. Nitsopoulos saw him six times in the six months preceding the accident. Her complaints were of colds, stomach pain and allergies.⁴

During each of Mrs. Nitsopoulos' six visits to Dr. Vozis, he also made the diagnosis "neurosis". On four occasions he prescribed Valium. General Accident submitted that this is proof that Mrs. Nitsopoulos had a psychiatric illness prior to the accident.

Mrs. Nitsopoulos submitted she did not have a pre-accident psychiatric disability. She testified that Valium was prescribed because during this period she was working long hours, she was over-tired, stressed out and was having trouble sleeping. I accept Mrs. Nitsopoulos' explanation.

The payroll records confirm that in the six months prior to the car accident Mrs. Nitsopoulos was averaging longer hours at work than usual. As well, her doctor's notes show that during this time she was suffering from upper respiratory infections, headaches and dizziness, stomach pains and allergic bronchitis. In these circumstances it is reasonable that Mrs. Nitsopoulos would be stressed out, feeling anxious and in need of medication to assist her in sleeping.

However, after reviewing Dr. Vozis' pre-accident clinical notes and records, I cannot conclude that Mrs. Nitsopoulos was suffering from a psychiatric illness prior to the accident. The first time Dr. Vozis' clinical records refer to Mrs. Nitsopoulos needing psychiatric help is about seven months after the accident, on January 8, 1993. In his clinical notes of that day, Dr. Vozis stated that Mrs. Nitsopoulos was "very depressed" and "crying" and on examination he found her to be "nervous." Her psychological state on that day was serious enough for him to arrange for a psychiatric assessment with Dr. Patmanidis. Nothing in Dr. Vozis' pre-accident clinical notes indicated that Mrs. Nitsopoulos was ever "very depressed" or required psychiatric treatment.

In conclusion, I find that Mrs. Nitsopoulos did not have a psychiatric illness prior to the accident, although she had been prescribed Valium. She was working productively and had not been referred for psychiatric treatment or counselling.

Entitlement:

Burden of Proof:

Mrs. Nitsopoulos received accident benefits for five years after the accident. For the first three years, she was paid weekly income benefits pursuant to subsection 12(1) of the Schedule which provides that:

The insurer will pay with respect to each insured person who sustains physical, psychological ormental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perfo rm the essentia(tasks of his or her occupation or employment...

The test for an insured's entitlement changes after he or she has received benefits for three years. Pursuant to subsection 12(5)(b) of the Schedule, Mrs. Nitsopoulos was paid weekly income benefits for two more years on the basis that as a result of the car accident, she was continuously prevented from engaging in any occupation or employment for which she was reasonably suited by education, training or experience.

The phrase "...continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience" in section 12(5)(b) of Schedule has been considered in a number of arbitration decisions. In the case of Caruso and Guarantee Company of North America,⁵ Arbitrator Manji reviewed the arbitration decisions and summarized the criteria established for determining the question of suitable employment.

I agree with Arbitrator Manji's summary of the criteria which include the following:

• The question of suitable employment in every case is a question of fact: the work must be suitable for that applicant, viewed fairly and realistically in the context of his or her educational and employment background.

• The range of alternative employment that may be considered depends on the applicant's background. It may include jobs that are different from the work that he or she was doing at the time of the accident, but only if they are reasonably suitable or appropriate for the applicant. If the job is substantially different in nature, status or remuneration, it may not be an appropriate alternative.

• Work is not necessarily suitable because an applicant has done a stint of it in the past. If the job is substantially different in nature, status or remuneration, it may not be an appropriate alternative.

• The primary focus is on an applicant's disability or functional limitations and not on the broader availability of work in the job market; however, the disability cannot be seen in a vacuum, but should be viewed in the context of the applicant's competitiveness in the existing marketplace.

In Caruso, Arbitrator Manji also stated that an applicant must present some evidence that he or she has made a sincere effort to "identify, try to find or attempt" some sort of 'suitable' employment, but failed because his or her injuries continuously prevent him or her from engaging in such employment. However, Arbitrator Manji added a qualification to this obligation with which I agree, namely, the obligation does not apply if an applicant is able to produce strong medical evidence that as a result of her disability he or she was unable to "identify, try to find or attempt" some suitable employment.

I find that Mrs. Nitsopoulos has discharged her burden of proof. I find that the medical evidence supports Mrs. Nitsopoulos' submission that as a result of her car accident she was psychologically disabled and therefore was unable to "identify, try to find or attempt" some suitable employment pursuant to the criteria of paragraph 12(5)(b) of the Schedule.

Except for Dr. Stancer (whose report was discussed above), all of the medical practitioners who examined Mrs. Nitsopoulos, including those who saw her at the request of General Accident, found that she was suffering from a psychological disability that prevented her from working, either at her previous job, or at any type of job.

As early as April 1993, Dr. Patmanidis judged Mrs. Nitsopoulos "to be totally disabled and unable to return to any type of occupation indefinitely." In 1994 Dr. Mermigis, who examined Mrs. Nitsopoulos for General Accident, stated that Mrs. Nitsopoulos' "psychological disfunction" not only prevented her from working, but also limited her ability to function independently in daily living. In 1995 Dr. Bail, who also examined Mrs. Nitsopoulos on behalf of General Accident, stated that she was disabled from performing her prior job-related duties and performing most homemaking chores.

In 1997 Dr. Bernstein, who further examined Mrs. Nitsopoulos on behalf of General Accident, concluded that she remained psychologically disabled from returning to the essential tasks of her pre-accident activities. It was his view, however, that Mrs. Nitsopoulos' psychological disability was not related to the accident.

In September 1997, Dr. Patmanidis reported that Mrs. Nitsopoulos' psychological and physical symptoms had rendered her totally incapacitated and unfit to work. He expected her to remain permanently disabled and to require long-term psychiatric follow up.

In March 1998, Mrs. Nitsopoulos' family doctor, Dr. Jones, stated that "her prognosis remains dismal and [she] will remain a psychological cripple, incapable of performing the essential tasks of daily living." In 1998 Mrs. Nitsopoulos saw Dr. Hanick, who also agreed that the accident "fully and completely disabled" Mrs. Nitsopoulos from working at any job.

Accordingly, I conclude that Mrs. Nitsopoulos has submitted strong medical evidence to show that as a result of her psychological disability, arising from the accident, she was unable to "identify, try to find or attempt" any suitable employment.

Finding on Entitlement:

General Accident submits that even if Mrs. Nitsopoulos is suffering from psychological problems which disable her from working, those problems result from previous traumas rather than from the car accident.

The issue of causation has been addressed in a number of arbitration decisions. The general consensus of these decisions is that an accident need not be the sole cause of an applicant's continuing problems. The test is whether the accident "significantly" or "materially" contributed to the applicant's disability.⁶

While I agree that Mrs. Nitsopoulos' psychological disability appears to be out of proportion in relation to the accident in which she was involved, nevertheless, I find that the accident "significantly contributed" to her present psychological disability. Mrs. Nitsopoulos may have had an underlying vulnerability because of past traumas. However, the evidence is clear that prior to the accident Mrs. Nitsopoulos was working on a regular basis as a waitress, and living a full and active life. Although Dr. Bernstein indicated that she could have developed a similar psychological profile in response to some other, unidentified, stressors, the fact is that it was trauma of the accident which resulted in her psychological disability.

Nothing in the pre-accident clinical notes and records indicates that Mrs. Nitsopoulos was ever prevented from working because of any physical or psychological disability. The evidence supports Mrs. Nitsopoulos' position that it was the trauma of the accident which precipitated her psychological disability. Therefore, I find that as a result of the accident Mrs. Nitsopoulos was not only substantially disabled from performing the essential tasks of her job, but that she is continuously prevented from engaging in any occupation or employment for which she is reasonably suited by education, training or experience.

Accordingly, I find Mrs. Nitsopoulos is entitled to weekly income benefit pursuant to paragraph 12(5)(b) of the Schedule from May 12, 1997 and ongoing on the basis that she sustained a psychological injury as a result of the car accident on June 18, 1992.

Quantum:

The following provisions of the Schedule are relevant to determining the proper amount of Mrs. Nitsopoulos' benefits:

12—(4) Subject to subsection (5), the weekly income benefit income benefit under subsection (1) will be the lesser of,

(a) $600...; and

(b) 80 per cent of the insured person's gross weekly income benefit income benefit income from his or her occupation or employment, less any payments for loss of income,...

(5) The insurer is not required to pay a weekly income benefit income benefit under subsection (1),

(a) for the first week of the disability; ...

(7) The following rules apply to the calculation of gross weekly income benefit income benefit income:

1. A person's gross weekly income benefit income benefit income shall be deemed to be the greatest of,

i. his or her average gross weekly income benefit income benefit income from his or her occupation or employment for the four weeks preceding the accident,

ii. his or her average gross weekly income benefit income benefit income from his or her occupation or employment for the fifty-two weeks preceding the accident,

iii. $232...

Under the provisions of section 12 of the Schedule, Mrs. Nitsopoulos is entitled to be paid a weekly income benefit which is 80 percent of the greater of her income in either the four weeks or in the 52 weeks before the accident, subject to a statutory weekly income benefit minimum amount of $185.60.

Mrs. Nitsopoulos bases her claim for a weekly income benefit of $311.66 on income earned in the four weeks prior to the accident.

General Accident disputes the amount of Mrs. Nitsopoulos' weekly income benefits and submits that the onus of establishing her pre-accident income rests solely with Mrs. Nitsopoulos.

General Accident paid Mrs. Nitsopoulos weekly income benefits of $311.66 from one week after the accident on June 18, 1992 until May 11, 1997. The amount of $311.66 was based on a report, dated March 8, 1994, prepared by a Chartered Accountant, Mr. William L. Thomas, hired by General Accident.

Despite the fact that General Accident paid Mrs. Nitsopoulos $311.66 a week for five years on the basis of Mr. Thomas' report, General Accident now rejects Mr. Thomas' report and his findings. General Accident submitted that Mrs. Nitsopoulos did not provide any objective, reliable, credible evidence to support her Employer's Confirmation of Income report, or any other reliable evidence, as to what hours she worked and what her earnings were in the four weeks prior to the accident. General Accident, therefore, submitted that Mrs. Nitsopoulos' weekly income benefit should be the statutory minimum of $185.60.

Mrs. Nitsopoulos adopts Mr. Thomas' findings and his conclusion that the amount of her weekly income benefit is $311.66.

Findings:

Mr. Thomas calculated Mrs. Nitsopoulos' weekly income benefit salary based on payroll records which recorded her bi-weekly hours and her earnings; as well, he calculated the amount of her tips based on the record of sales attributed to her.⁷ From this information Mr. Thomas concluded that Mrs. Nitsopoulos' gross weekly income benefit salary and tips for the four weeks preceding the accident was $389.82. Pursuant to subsection 12(4)(b) he calculated that 80 percent of this amount was $311.66.

After reviewing Mr. Thomas' very detailed report, and the supporting documentation, including the payroll records, I accept Mr. Thomas' calculations and conclusions as being independent and objectively verifiable. Accordingly, I conclude that Mrs. Nitsopoulos' weekly income benefit is $311.66.

Repayment:

General Accident submitted that it is entitled to repayment of the weekly income benefits paid to Mrs. Nitsopoulos because she did not provide objective evidence to support the amount of her weekly income benefits. Further, it argued that she had a pre-accident history of psychological disability and had used the accident as an excuse to create an impression of disability to defraud General Accident.

Subsection 27(1) of the Schedule provides that "a person must repay to the insurer any benefit received under this regulation that is paid to the person through error or fraud." Under subsection 27(1), the insurer bears the onus of proving that the applicant's benefits were overpaid through error or fraud on the part of the insured person.

Regarding the amount of Mrs. Nitsopoulos' weekly income benefit, even if I am wrong in my conclusion that Mrs. Nitsopoulos is entitled to $311.66, I do not find that any alleged error resulted from error or fraud on the part of Mrs. Nitsopoulos. It is very clear from the evidence that General Accident relied on its own accountant to arrive at the figure of $311.66. In fact, the accountant's report gave General Accident the choice of choosing the figure of $311.66 or the statutory minimum of $185.60. General Accident chose the figure of $311.66. Accordingly, I find that General Accident is not entitled to a repayment for any error in the amount of Mrs. Nitsopoulos' weekly income benefit.

General Accident also failed to present any probative evidence to support its second submission. General Accident paid Mrs. Nitsopoulos weekly income benefits for five years. During this period of time, General Accident had ample time to investigate and adjust Mrs. Nitsopoulos' claim. It did so by sending her to six insurers' examinations and putting her under surveillance for 23 days.

None of the doctors who examined Mrs. Nitsopoulos for General Accident prior to the termination of her benefits ever suggested that Mrs. Nitsopoulos was feigning her psychological disability. As well, nothing in the surveillance evidence indicates that Mrs. Nitsopoulos was feigning her disability. Only one medical practioner, Dr. Stancer, alleged that Mrs. Nitsopoulos feigned her disability and, as I noted above, I was not persuaded by his opinion.

In conclusion, I do not find that benefits have been overpaid. If there was an overpayment of benefits, any such overpayment did not result from error or fraud on the part of Mrs. Nitsopoulos. Accordingly, I find that General Accident is not entitled to any repayment of weekly benefits paid to Mrs. Nitsopoulos.

General Accident's entitlement to a deduction from benefits paid:

Section 15 of the Schedule provides that "the insurer may deduct from any benefit payable under this Part 80 percent of any income received or available from any occupation or employment subsequent to the accident." General Accident submitted that Mrs. Nitsopoulos was capable of light work and that this light work was available to her through her family's restaurant business. General Accident therefore submitted it was entitled to a credit with respect to post-accident income available to Mrs. Nitsopoulos. General Accident bases its submission on the testimony of Mrs. Nitsopoulos' nephew, that he would make a job available for her if she wished to return to work.

In my view, the fact that a job would be made available to Mrs. Nitsopoulos if she could return to work does not mean that General Accident is entitled to a deduction from any weekly income benefits that are awarded to her. What must be shown is that Mrs. Nitsopoulos is capable of doing the job that is available to her. I have received no probative evidence to support this proposition. Accordingly, I find that General Accident is not entitled to a deduction pursuant to section 15 of the Schedule.

EXPENSES:

I have not addressed the issue of expenses in this decision. Counsel may bring this issue before me if they are unable to resolve this matter between themselves.

June 17, 1999

Joyce Miller Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 111

FSCO A97-001642

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SOULA NITSOPOULOS

Applicant

and

GENERAL ACCIDENT ASSURANCE CO. OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. General Accident shall pay Mrs. Nitsopoulos weekly income benefits pursuant to subsection 12(5) of Schedule from May 12, 1997 and ongoing.

2. Mrs. Nitsopoulos' weekly income benefits are fixed at $311.66 per week.

3. General Accident shall pay Mrs. Nitsopoulos interest on amounts owing.

4. The issue of expenses may now be spoken to.

June 17, 1999

Joyce Miller Arbitrator

Date

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. 212(5) The insurer is not required to pay a weekly benefit under subsection (1), (b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.
3. 3On two of these occasions she left for appointments, one with General Accident's case manager, another for an IME with Dr. Hall. On several other days Mrs. Nitsopoulos was only seen very briefly outside her home.
4. 4The clinical notes show that on: December 1, 1991, Mrs. Nitsopoulos had an upper respiratory infection, chest-wheezing and her ear, nose and throat were congested.; January 1, 1992, Mrs. Nitsopoulos had headache, dizziness and abdominal pain; March 1, 1992, Mrs. Nitsopoulos had a fever and cough, chest-wheezing and was diagnosed with "Allergic Bronchitis"; May 2, 1992, Mrs. Nitsopoulos complained of headache, and dizziness and was diagnosed with an upper respiratory infection; and on June 10, 1992, about a week before the accident Mrs. Nitsopoulos was diagnosed with an upper respiratory infection. She had fever and a cough and her ears, nose and throat were congested.
5. 5(FSCO A-006856, May 9, 1997)
6. 6For example, Aguilar and Allstate Insurance Company of Canada (OIC A-000542, April 21, 1995) upheld on appeal; Pisani and Simcoe & Erie General Insurance Company and Canadian General Insurance Company (OIC P-0003929 and P-005693, December 11, 1995); Worku and Co-operators General Insurance Company (OIC A-002172, August 29, 1996).
7. 7The restaurant had an electronic register which recorded the daily sales, including sales tax, generated by each employee. Each employee had an assigned number. Mrs. Nitsopoulos was assigned "Number 17." As well, Mrs. Nitsopoulos was identified by the name "Susie" which appeared on the register tape. The register tape also recorded meals that were delivered to the hotel rooms. Mr. Thomas estimated that Mrs. Nitsopoulos earned tips of 10 percent of the estimated sales amount generated directly by her, and 15 percent of the amounts generated by her for delivery of room service and meals.