Neutral Citation: 1999 ONFSCDRS 153

FSCO A-012411

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

L. MARGARET R. TURNER

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

M. Kaye Joachim

Heard:

October 26 to 29, 1998, January 19, March 8, 9, 10, 11, April 16, and May 14, 1999 at the Financial Services Commission of Ontario, Toronto

Appearances:

Michael J. Gillen for Ms. Turner

Albert M. Conforzi for Economical Mutual Insurance Company

Issues:

The Applicant, L. Margaret R. Turner, was injured in a motor vehicle accident on May 13, 1991. She applied for and received statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule.¹ Economical terminated weekly income benefits on May 12, 1994. The parties were unable to resolve their disputes through mediation, and Ms. Turner applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Turner entitled to weekly income benefits under section 12(5)(b) after May 13, 1994?

2. Is Ms. Turner entitled to supplementary medical and rehabilitation expenses under section 6 in the amount of $6,395.96?

Ms. Turner also seeks interest and her expenses.

Result:

1. Ms. Turner is not entitled to weekly income benefits after May 12, 1994.

2. Ms. Turner is not entitled to supplementary medical and rehabilitation benefits after May 1994.

Summary of Conclusions:

Having regard to her education, training and experience, Ms. Turner is reasonably suited to work part time as an administrative assistant, editor or writer. As a result of the accident of May 13, 1991, Ms. Turner suffered an exacerbation of pre-existing neck, back and ligament pain. These physical injuries, superimposed on an already stressed individual, rendered Ms. Turner incapable of resuming her pre-accident employment for some time. Post-accident events, described below, may have further delayed Ms. Turner's recoveries from the injuries sustained in the accident. By May 1994, three years after the accident, Ms. Turner's continuing neck and back symptoms had returned to her pre-accident level and were no longer disabling.

Ms. Turner's light sensitivity worsened after the accident. Regardless of whether the accident made a material contribution to the worsening of her light sensitivity, this condition does not continuously prevent Ms. Turner from engaging in work for which she is reasonably suited.

After the accident, Ms. Turner began taking the drug Artane for pre-existing eyelid spasms (a movement disorder known as blepharospasm). She had an adverse reaction to this drug and suffered a cascade of symptoms which continue to plague her. Her movement disorder continued to worsen after the accident, and were ultimately diagnosed as multi-focal cranial dystonia. Ms. Turner has not demonstrated that the accident made a material contribution to the worsening of her blepharospasm or the progression of her condition to multi-focal cranial dystonia.

Ms. Turner was eventually diagnosed with Sjogren's Syndrome, an autoimmune condition, and also developed temporomandibular joint pain. Ms. Turner has not established that the accident made a material contribution to the development of these conditions.

While the evidence demonstrates that Ms. Turner may be continuously prevented from returning to any form of sustained, remunerative employment, she has not demonstrated that her disability after May 1994 is the result of injuries sustained in the accident of May 1991. Therefore she is not entitled to weekly income benefits or supplementary medical or rehabilitation expenses beyond that date.

Procedural Rulings:

Surveillance Evidence:

The Insurer sought to introduce investigators' reports, photographs and video surveillance obtained during a lengthy investigation of Ms. Turner between June 1992 and June 1995. Ms. Turner initially sought to exclude portions of the investigation evidence on the basis that the investigative techniques were unduly invasive of her privacy. The parties agreed to put the material before me and make their arguments with respect to its admissibility afterward.

During the cross-examination of Brian McCulloch, the owner of Scout Security Investigations, it became apparent that handwritten notes contained in the investigation file had not been produced to the Insurer and hence, to the Applicant. The Applicant sought to exclude all the investigation material and evidence on the basis that this was a breach of Rule 37.1 of the Dispute Resolution Code - Third Edition.

i) Breach of Privacy:

In Levey and Traders General Insurance³ Arbitrator Evans excluded video surveillance of the interior of the Applicant's home after 10 p.m. on the basis that the breach of privacy outweighed whatever probative value the tape contained. The Applicant sought a similar ruling here.

One alleged invasion of privacy during the investigation occurred when Brian McCulloch entered Ms. Turner's home in the guise of seeking Ms. Turner's professional printing services. The second alleged breach of privacy consisted of Ms. Janice McCulloch arranging and attending several piano lessons in Ms. Turner's home for the purpose of observing Ms. Turner's activities and physical abilities. During the final lesson, Mr. McCulloch accompanied Ms. McCulloch and surreptitiously videotaped the lesson. Ms. McCulloch was not a licensed private investigator at the time, and the Applicant argued that their actions, in addition to being a breach of privacy, contravened the Private Investigators and Security Guard Act, as well as the criminal law of trespass and break and enter.

The Insurer argued that these were routine investigative techniques which were justified because Ms. Turner was conducting her business out of her home.

It is unnecessary (and outside my area of expertise) to comment on any breach of provincial or criminal statutes. Suffice it to say that I find that the above-mentioned investigation was unnecessarily intrusive of Ms. Turner's reasonable expectation of privacy. I recognize that surveillance of insureds is routinely undertaken by insurers to challenge the veracity of insureds' claims about their abilities and activities. Arbitrators routinely admit such surveillance. However, this surveillance is generally conducted in places to which the public ordinarily has access. While the making of a claim for benefits may expose insureds to reasonable investigation into their activities and abilities, it should not require them to give up reasonable claims for privacy. In my view, in the particular circumstances of this case, the entry into Ms. Turner's home under the pretext of seeking her printing services and piano lessons was unduly invasive. I make this determination notwithstanding the fact that Ms. Turner's light sensitivity kept her indoors much of the time, making surveillance out of doors more difficult. I also recognize that Ms. Turner was conducting "business" or "employment" in her home. Nonetheless, I conclude that there were other, less intrusive ways to confirm Ms. Turner's activities and abilities. I note that the investigators were able to confirm the fact that Ms. Turner was giving piano lessons to other students by the simple expedient of taking down the license plates of persons who attended at her home and interviewing them separately. The ability of the investigators to observe Ms. Turner while she gave a piano lesson or conducted a meeting is not so probative and necessary to this claim that it justified the invasion of Ms. Turner's reasonable expectation of privacy in her own home. These physical abilities were just as easily observable outside her home. Finally, I find that it was inappropriate in this case for the investigators to do more than simply observe or record Ms. Turner's activities. It was unnecessary to lure her to engage in activities which she did not initiate.

I have not considered the videotape evidence taken in Ms. Turner's home during the final piano lesson, or any evidence or reports of meetings and lessons in her home.

ii) Failure to Disclose Investigator's Notes:

The more difficult question is whether the remaining investigative evidence should be excluded because of the investigator's failure to produce the handwritten notes from the investigation file. These notes, taken by various investigators, were summarized by Mr. McCulloch in his report. Rule 37.1⁴ provides that if a party intends to rely on any portion of surveillance or investigative evidence, they shall provide copies of "all videotapes, photographs, reports, notes and summaries taken or prepared by anyone upon whose evidence the party intends to rely at the hearing." The rule requires that insurers obtain and produce from their investigators their entire investigation file, including, handwritten notes. If the insurer intends to rely on any surveillance or investigative evidence, it must disclose it all, down to the last scrap of paper. The obligation is on the insurer to request this material of its investigators, follow up if material appears to be missing, and produce the entire file to the applicant. I find that Rule 37.1 was breached by the Insurer in this case. The Insurer never asked its investigator for its file, but merely accepted its report, which clearly summarizes information which must have been initially recorded elsewhere.

Nonetheless, I conclude that the late disclosure should not result in the exclusion of the entire investigative evidence. Although the Insurer breached its obligations under Rule 37.1, this was not a deliberate attempt at concealment, but rather, a failure to take proper steps to obtain the underlying notes. I note that the absence of any handwritten notes must have been equally obvious to the Applicant's counsel prior to the hearing, yet the Applicant never specifically requested such notes. Finally, I am satisfied that any potential unfairness to the Applicant was addressed by the adjournment I granted to allow the Applicant's counsel to review the notes prior to completing his cross-examination of Brian McCulloch.

iii) Weight to be given to surveillance evidence:

The investigation in this case consisted primarily of observations made by Brian McCulloch or David McCulloch or Silvera F., investigators employed by Scout Security. The investigators made notes which they provided to Brian McCulloch who used these notes to prepare reports summarizing Ms. Turner's activities and abilities. In several instances, Brian McCulloch elaborated on his investigators' rather sketchy notes. For example, the notes of investigator David McCulloch record that on Wednesday, September 30, 1992 "1320 - subject departs in passenger seat of TAXI," Mr. McCulloch translates this passage in his report as "She walks a short distance from the doorway to an awaiting taxi cab parked on her driveway. She boards the rear seating area of the cab in normal manner (lowering herself from a standing position to a seated position in one continuous manoeuvre)." Mr. McCulloch explains his elaboration on the basis that his investigators are trained to record "abnormal" movements and since no abnormality is noted, the subject must be assumed to have boarded the taxi in a "normal" manner, which Mr. McCulloch defined above.

In my view, these extrapolations by Mr. McCulloch seriously undermine the value of his report. Not only is he summarizing the observations of someone else, but he is elaborating on them. I give little, if any weight to Mr. McCulloch's written reports of other investigators' observations.

I am left with the actual notes of the various investigators and the reports of Brian McCulloch's own observations. I accept this limited evidence with respect to Ms. Turner's activities. Thus, if the investigator recorded that she remained inactive, I accept that observation. If the investigator indicated that she visited a bank, I accept that description of her activities.

However, I do not ascribe much weight to descriptions of her physical capabilities, such as the comment that she walked "normally." The investigators in this case have no medical expertise to comment on how persons with neck and back injuries might be expected to move. Unlike actual videotape evidence, where I am able to draw my own conclusions about the physical restrictions depicted, an investigator's subjective opinion whether a claimant is moving about normally or abnormally is of little value.

I find the investigative evidence tended to confirm, rather than undermine Ms. Turner's claims of disability.

EVIDENCE AND ANALYSIS:

Reliability of Applicant's Evidence:

Some of the issues in this hearing, including the extent of Ms. Turner's pre-accident medical history, the onset of various symptoms, and the degree to which Ms. Turner was functionally impaired, are dependent on the reliability of Ms. Turner's evidence. I conclude that Ms. Turner's evidence on these matters is not reliable, for the following reasons.

Many of the events which Ms. Turner testified about occurred many years ago. Where Ms. Turner's recollection of events differs from accounts written at the time of the events, I find that the latter are likely to be more reliable than the former.

In fact, Ms. Turner's recollection of past events often differed significantly from records made at the time. When confronted with these discrepancies, Ms. Turner was adamant that everyone else was mistaken, and that her personal recollection years later was correct. While I recognize that medical practitioners often make mistakes when recording a patient's history, I find it highly improbable that virtually every doctor who saw Ms. Turner made the type of egregious errors when recording her symptoms that Ms. Turner alleges they made.

Ms. Turner refused to acknowledge the existence of, or the severity of, her pre-accident symptoms, which will be discussed in greater detail below. One example will suffice. Ms. Turner repeatedly denied having been diagnosed with a condition known as "blepharospasm" prior to the accident. Yet, she completed a medical questionnaire prior to the accident and identified herself as suffering from "blepharospasm." When cross-examined on this questionnaire, Ms. Turner continued to assert that she had never been advised she had the condition, but perhaps the term "blepharospasm" was the "hot word" of the time. This response exemplifies Ms. Turner's poor insight into her pre-accident health.

There is a significant discrepancy between symptoms Ms. Turner described to various medical practitioners prior to the accident and her pre-accident activities (which is supported by other evidence). Similarly, her self-description after the accident conflicts with her presentation at the hearing. In September 1998, she described herself on a health questionnaire in the following terms:

Now I am wracked with pain, my face and neck are grotesquely distorted from the spinal chord interference and I have great difficulty swallowing, breathing and doing any physical activity. My jaws are excruciatingly painful too and all this pain is reflected in my face which was relaxed, pretty and very animated prior to the accident. People who see me are frightened and repulsed by my obvious handicaps and tend to shun and avoid me.⁵

Ms. Turner's appearance at the hearing in October 1998, January 1999 and March 1999 was completely at odds with that description. These discrepancies lead me to conclude that Ms. Turner's reports of symptoms and functional ability are not reliable.

I accept that Ms. Turner testified honestly, in the sense that she did not deliberately misrepresent the facts. I find that Ms. Turner has, over time, become sincerely convinced that every medical symptom she has experienced since the accident, is caused by the accident. Perhaps unconsciously, she modified her testimony to fit that belief. However, for the reasons set out above, I find that Ms. Turner's recollections and description of her past and current symptoms are unreliable. Accordingly, I do not accept her testimony, as sufficient evidence unless it is supported by other evidence, or consistent with the preponderance of other evidence.

Education, Training and Experience:

Margaret Turner was 53 years old at the time of motor vehicle accident. She trained as a teacher and taught primary school full time from 1957 until 1967. Apart from a brief return to teaching in 1976 and 1977, she has not taught since that time.

In the 1960s and 1970s she took courses in radio and television broadcasting, television production, advertising, graphic design, public relations and business journalism. She also studied music.

During the 1970s Ms. Turner embarked on a variety of projects. She wrote children's educational materials. She worked as a freelance newspaper columnist and wrote an advertising column for local newspapers. She worked as a public relations consultant for the Halton School Board for several years. She worked for Thomas Nelson and Sons, an educational publisher on a nine-week contract and with Gage Educational Publishing for six weeks. She served as assistant national editor of TV Guide, the Canadian edition.

In the early 1980s she wrote environmental material for primary classes for the Peel Board of Education. She produced a series of 90-second Christmas radio spots or "mosaics" which she sold to a radio station. She began working on an in-flight entertainment program and writing a harlequin novel, but has not completed these projects.

Her most recent creative project, in which she was involved just prior to the car accident, involved figure skating. She proposed to develop an ice dancing video, to provide step-by-step instruction for those people in remote areas who did not have access to ice dance instruction. In addition to the video, she intended to produce a training manual, skating apparel, crests and other paraphernalia. The first video was taped in late December 1990 and early January 1991, with her ice dancing teacher acting as the coach and Ms. Turner acting as the student. She had designed a logo and sewed the first sweatshirt which is shown on the initial video, Starskate. The project has remained incomplete since the car accident.

Although her primary interest from the 1980s was to engage in creative projects, her income was derived from more mundane work. In 1980, Ms. Turner began working at Office Overload, an agency providing temporary office workers. Her duties were mainly administrative, involving reception duties, typing, and other clerical functions. In 1988, she began working with another temporary agency, Linda Kaye. In 1988 she earned $8,719.64 from temporary assignments. In 1989 she worked 47.5 days, earning $7,119.06, in 1990, she worked 58.5 days, earning $9,431.24 and in 1991 she worked only 21.5 days, prior to the accident of May 13, 1991.

Subsequent to the accident, Ms. Turner advertised for piano students and taught private half-hour lessons to several children.

I find that in light of her education, experience and training, Ms. Turner is reasonably suited to work as an editor, an administrative assistant or a writer. Although Ms. Turner had earned professional salaries in the 1960s and 1970s, the evidence indicates that since at least the 1980s she has reduced her income-producing activities in favour of more creative, but non-paying work. I am satisfied that a yearly income of approximately $10,000 is in keeping with the income she has earned for several years prior to the accident. This indicates that Ms. Turner would not be required to perform any of the above occupations on a full-time, year-round basis, to generate the level of income she generated prior to the accident. However, in order to accept administrative work from a temporary agency, Ms. Turner would have to be available for full-time hours during the length of the assignment, although she could take relatively lengthy respites between assignments.

Causation Test:

The onus is on Ms. Turner to establish, by credible, reliable evidence that she was continuously prevented from engaging in any occupation or employment for which she is reasonably suited by education, training or experience, after May 13, 1994 as a result of injuries sustained in the May 1991 accident.

It is well established in arbitral jurisprudence that the insured need not establish that the accident is the sole cause of his or her difficulties. If Ms. Turner's overall condition resulted from the cumulative effect of the injuries from the car accident, her pre-existing and her post-accident health problems, she will be entitled to weekly income benefits, provided the injuries from the car accident materially contributed to her overall disabled condition.⁶

Ms. Turner argued that she was a fragile individual and that the accident of May 13, 1991 was the final trigger which materially contributed to her inability to function after the accident. Although she had various medical complaints prior to the accident, she was functioning at work, caring for her own home, participating in church activities, and skating recreationally. Subsequent to the accident, she stopped driving, working, skating and attending church, and she required in-home care. Ms. Turner relies heavily on the temporal connection between the accident and her gradual decrease in function, to support a common sense inference that the accident materially contributed to her downward spiral, even though the medical experts could not trace any specific medical chain of causation.

Pre-Accident Health and Activities:

Ms. Turner owns her own home in Oakville, and, prior to the accident was responsible for her own house cleaning, garden maintenance and snow shovelling. Ms. Turner was working, albeit sporadically, for several years prior to the accident. Just prior to the accident, she had completed a five-week assignment, working between 23 and 38 hours every week.

In addition, Ms. Turner attended a downtown Toronto church on a weekly basis and participated in monthly meetings of the public relations committee. She was vice-president of the Moss Park Skating club in 1991, and was a regular weekly skater at various skating arenas in Toronto and Oakville.⁷

Ms. Turner took ice dancing lessons in the years prior to the accident, and produced and starred in an ice dance video in late December 1990 and early January 1991. On this video she skated several dances with a professional ice dancer.

At the same time that Ms. Turner was outwardly functioning in these areas of life, she was constantly seeking medical attention and treatment for a variety of symptoms. Ms. Turner suffered a serious skating accident in March 1989, in which she broke the bone in her right wrist. She also sustained a compression fracture of the L1 vertebrae for which she did not receive any treatment. This accident left her with nagging low back pain for which she sought chiropractic treatment.⁸ After the skating accident, she began experiencing eyelid spasms, which were diagnosed as blepharospasm.

In June 1989, during a traffic jam on Highway 401, her car was rear-ended, and she in turn struck the car in front of her. She was taken to emergency at Sunnybrook Hospital, reporting pain in her neck, and tenderness in the trapezius muscles and the C4-5 area.

She was unable to work from March 1989 until October 1989 because of multiple neck and eye symptoms as well as severe headaches. Her continuing blepharospasm allowed only a sporadic return to work.⁹ Her mother died in March of 1991, which prompted her to seek psychiatric assistance to deal with her grief.

In the months before the accident, Ms. Turner was receiving chiropractic treatments for chronic neck and back pain, taking pain relievers and Valium and diazepam to relieve anxiety,¹⁰ and receiving injections in her eyelids to relieve the spasms.

The Accident and Subsequent Events:

The motor vehicle accident occurred on May 13, 1991. While approaching an intersection, Ms. Turner struck the car ahead of her. She was wearing a lap and shoulder belt. The impact dented her front licence plate and the back rear licence plate of the other vehicle. Ms. Turner testified that the impact caused her head to bounce back and forth against the hard seat and headrest.

Ms. Turner drove home and began to experience neck pain, and a strain in the ligaments of both arms and legs.¹¹ She began massage and chiropractic treatment immediately. Despite these symptoms, she was able to continue driving from Mississauga to Toronto for ice dancing lessons two nights per week until August 1991.¹² She also attended a writing seminar that summer. She described herself as getting back to her pre-accident condition by August of 1991.¹³

In September of 1991 she began a new medication, Artane, on the recommendation of her specialist, Dr. Tony Lang, for the treatment of her blepharospasm. She took the medication for six months but it did not improve her movement disorder. Rather, it caused a cascade of other symptoms, including dry mouth, difficulty swallowing, severe lower abdominal pain, feelings of terror, difficulties concentrating, loss of appetite and weight, lack of co-ordination, unsteadiness, blurry vision, difficulty writing, jumbled speech, numbness on the left side of her body, swollen, purple tongue, sore throat, blood in her throat, loss of facial animation, pounding heart, shallow breathing, dull eyes, drooping facial muscles, extreme light sensitivity, increase in eyelid muscle spasms, new muscle spasms in face, lower cheek and neck, blood disorders, motion sickness, difficulties chewing and swallowing.

Ms. Turner gradually ceased all her pre-accident activities, including working, attending church and ice skating. She had meals on wheels delivered and obtained other assistance from various agencies to help with household chores.

She saw a series of specialists. She tried chiropractic treatment, physiotherapy, massage therapy, cranial sacral massage therapy, relaxation therapy, hypnotism, and active exercise using nautilus equipment. She gradually resumed gentle skating sessions. She attended the Rothbart Pain clinic for a series of injections. She was treated for a TMJ condition and fitted with bite plates

From January 1993 to June 1994, she gave occasional half-hour piano lessons.

Since May 1994, although her symptoms wax and wane, she continues to feel pain and spasms in her face, neck and back. She fatigues easily and lacks upper body strength. She suffers from a TMJ condition, and disc-vertebrae problems, as well as muscle contractions throughout her body. She is currently being treated for Sjogren's's disease, a disease of the immune system. She experiences light sensitivity. She has been diagnosed with myofacial pain syndrome, and multi-focal cranial dystonia.

Evidence of Deterioration After the Accident:

In support of her argument of immediate and radical deterioration after the accident, Ms. Turner relied primarily on the evidence of several friends and neighbours who testified about her drastic decline in functional abilities after the accident. I find that their evidence is not sufficiently compelling to overcome the preponderance of medical evidence with respect to the onset and cause of Ms. Turner's symptoms.

The evidence of Gerda Sippert, Ms. Turner's hair stylist, was so vague with respect to dates and symptoms, as to be of no value whatsoever. The evidence of Lou Champage, a skating acquaintance, was that as early as April 1991, Ms. Turner was demonstrating difficulties skating. He did not see her immediately after the accident of May 1991 or throughout the summer, but confirmed that when he saw her in the fall of 1991, she had deteriorated further. He also confirmed that at that time, Ms. Turner blamed her deteriorating condition on the drug Artane, rather than directly on the accident. Robert Jeffries also confirmed that he noticed a deterioration in Ms. Turner's condition in the fall of 1991. He did not see Ms. Turner throughout the summer of 1991. Debbie Bekker, Ms. Turner's neighbour, testified that she noticed that Ms. Turner was experiencing neck pain, headaches and difficulties with her eyes in the spring of 1991, and that by the fall of 1991, she and her husband were helping Ms. Turner with her yard work. She also recalled helping Ms. Turner with her grocery shopping through the spring and summer of 1991 until her health further deteriorated and she began having her meals brought in (which first occurred in January 1992).¹⁴

Alex Kyle, Ms. Turner's solicitor, first met her in the spring of 1991, after her mother's death. Mr. Kyle kept no notes or records of this first meeting, as it did not result in any specific work at that time. Mr. Kyle testified that he noticed nothing unusual about Ms. Turner's physical condition at his first meeting. He testified that he next saw Ms. Turner in July of 1991 at which time she was driven to his office and picked up by a third person. At that time, he observed that she was wearing eye shades, she was not moving well, and she was talking through her teeth.¹⁵He saw her on several subsequent occasions and in his view, she had never returned to her original condition.

This evidence supports a conclusion that Ms. Turner suffered physical injuries in the motor vehicle accident of May 1991, which I accept. However, this evidence is also consistent with a conclusion, set out below, that Ms. Turner's reaction to the drug, Artane, was the final triggering event which contributed materially to the deterioration of her condition.

The medical evidence connecting the car accident of May 13, 1991 to the deterioration of Ms. Turner's condition and ongoing symptoms is weak.

Dr. Riley, Ms. Turner's family doctor for many years prior to the accident, and for the first year after the accident, confirmed that Ms. Turner was disabled after the accident by a combination of pre-accident and post-accident symptoms including blepharospasm, muscle spasms in the face, neck and back, headaches and general anxiety.¹⁶ However Dr. Riley did not offer any opinion on whether the May 13, 1991 car accident materially contributed to Ms. Turner's ongoing symptoms after the accident.¹⁷

Dr. Jaconello, who began treating Ms. Turner in August 1994, three years after the accident, initially concluded that Ms. Turner was severely disabled by symptoms of eye twitching, facial spasms, neck pain, headaches, severe light sensitivity and eyeball pain. He attributed the symptoms to the accident and side effects of the drug, Artane.¹⁸ By 1996, he diagnosed a severe myofascial pain syndrome (widespread pain) worsened by the drug, Artane.¹⁹ By 1998, he had confirmed that Ms. Turner had widespread pain and was suffering from an autoimmune disorder, likely Sjogren's Syndrome, which caused her immune system to be in a constant pre-inflammatory state. He concluded that any disease process requires multiple triggers and it was the accident of May 13, 1991 which was probably the final trigger that unmasked the severe functional and metabolic problems she now endures. Dr. Jaconello's conclusion is considerably weakened by the fact that he has no expertise in autoimmune disorders, that he has never reviewed Ms. Turner's medical records prior to August 1994, and that he believed that the drug, Artane was taken for symptoms related to the accident. The basis of his opinion is that the accident was the last significant event which occurred before the deterioration of Ms. Turner's health and it must therefore be the "triggering" event. I find that his factual assumptions are incorrect.

Mr. Robert Harris, a sacral cranial therapist, examined and treated Ms. Turner in November 1994 and noted significant and widespread restrictions in Ms. Turner's head and body, consistent with her complaints of pain and stiffness. He saw her again in November and December 1998. Although Mr. Harris is not a medical doctor and is not permitted by his therapist license to diagnose conditions or give opinions on causation, he nonetheless did offer his opinion that Ms. Turner's restrictions were caused by the motor vehicle accident of May 13, 1991 and to pharmaceutical complications (the reaction to the drug, Artane). He based his opinion on the fact that, in his 20 years of experience as a therapist, he has gained clinical experience with the symptoms associated with specific conditions and causes. Mr. Harris' opinion is undermined by the fact that he is not qualified to give opinions on causation. Also, Mr. Harris's opinion was based on an examination first performed three years after the accident, without accurate knowledge of Ms. Turner's medical history, her previous accidents, or the nature and force involved in the car accident of May 31, 1991. I note that in his initial opinion, Mr. Harris opined that severe restrictions like Ms. Turner's are "usually only found when there has been significant trauma such as anoxia, coma, high fever, a brain or spinal chord injury, widespread inflammation or toxic influence," none of which occurred in the May 1991 accident. I note that he testified that Ms. Turner's restrictions were also consistent with a reaction to medication and dystonic problems, which I have found are unrelated to the accident.

Conclusions on Causation:

While a decrease in function immediately after an accident raises a strong inference that the two are related, the presumption is rebutted in this case by the preponderance of other evidence. The evidence demonstrates a gradual deterioration in Ms. Turner's physical and psychological wellbeing in the years prior to the accident. Ms. Turner suffered from chronic neck and low back pain, severe blepharospasm, and an emotional adjustment disorder. This was compounded by the grief she experienced when her mother died, the month before the accident. These physical ailments while not completely disabling her functionally, severely limited her working ability, to the point that she barely worked six months in the two years prior to the accident. The accident caused some ligament pain and exacerbated her previous neck and back pain and temporarily disabled her from working. However, her condition was not serious enough to prevent her from driving from Mississauga to Toronto, taking ice dancing lessons twice a week until August of 1991, and participating in a writing seminar.

Before Ms. Turner recovered from the effects of the motor vehicle accident, a further event intervened. In September 1991, Ms. Turner began taking the drug, Artane, for her pre-existing blepharospasm. She experienced adverse side effects from this drug, unleashing a cascade of symptoms from which she had not recovered. It was after this point that she ceased driving completely, began taking in meals, and became unable to use public transit because of difficulty walking due to instability.²⁰

Accepting the Applicant's counsel's arguments that a strong temporal connection between a deterioration in health and a traumatic event is sufficient evidence of causation, even in the absence of persuasive medical evidence, the preponderance of evidence in this case points to Ms. Turner's severe reaction to the drug, Artane in the fall of 1991 as the final precipitating event, rather than the minor car accident of May 13, 1991.

Ms. Turner gradually recovered from the effects of the motor vehicle accident, but she continued to be disabled by the progressive worsening of her pre-existing blepharospasm and the effects of the Artane medication. She was diagnosed with Sjogren's Syndrome, and developed temporomandibular joint pain. For reasons discussed below, I find that the accident did not make a material contribution to those conditions and that, by May 1994, she had recovered from the effects of the accident of May 13, 1991.

Blepharospasm and Multi-focal Cranial Dystonia:

Ms. Turner argued that although she suffered from eye spasms (diagnosed as blepharospasm) prior to the accident, these spasms significantly worsened and spread after the accident. Eventually, the spasms moved to her face and neck and were ultimately diagnosed as multi-focal cranial dystonia. Ms. Turner again relied on the temporal connection between the accident and the worsening and spreading of her spasms to establish causation. Neither the expert evidence nor the chronology of symptoms supports this theory.

1. Expert Evidence:

Blepharospasm involves muscles around the eye and causes rapid blinking or sustained spasms and involuntary closing of the eyelids. It is both a cranial and focal dystonia. Blepharo comes from the Greek word for eyelids. Cranial refers to the head and focal indicates confinement to one part. The word dystonia describes abnormal involuntary sustained muscle contractions and spasms and refers to the increased muscular tone that causes fixed abnormal postures. Patients with blepharospasm have normal eyes. The visual disturbance is due solely to the forced closure of the eyelids. Blepharospasm is thought to be due to abnormal functioning of the basal ganglia and neuroanatomic and neurochemical abnormalities.²¹

The evidence presented by Ms. Turner on the etiology of movement disorders (dystonia) was extremely tentative.

Dystonic etiology is usually classified as a) Primary ie hereditary or idiopathic b) Secondary ie perinatal cerebral injury (associated with and/or around birth), cerebral infection, strokes, toxins, drugs and head injury.

It is difficult to find a reference specifically related to significant head trauma (cerebral) and the beginning of dystonia ... Head trauma is listed as a secondary cause of dystonia in classifications of that syndrome. It also is stated that in cases of head trauma "the course stabilizes and does not progress."²²

Initially, Dr. J. Marotta, Ms. Turner's specialist, did not believe that her movement disorder was caused by the motor vehicle accident.²³ Eventually, Dr. Marotta did a second literature search and suggested that there may be a relationship between the various traumas Ms. Turner had experienced and the development of her movement disorder:

..thus ocular insults may play a role in triggering the onset of this cranial dystonia, in the same way as trauma to other parts of the body may precede the onset of other forms of focal dystonia....

Ms. Turner's history indicates that, in March 1989, she fell and broke her right radius and her first lumbar vertebra. This occurred while figure skating. In June 1989 she was involved in a rear end collision on Highway 401 and developed considerable pain in her neck. In this second accident, she re-broke her right wrist. In the fall of 1989 she was crushed in a theatre door and her right hand was re-injured once again. In the fall of 1989, she slipped on ice and fell on her elbows. Further, in the fall of 1989, she tripped and fell down stairs, again falling on her elbows and straining her right ankle. It was in June of 1989 that minor blinks began and these have subsequently become much more severe to the point where she is virtually functionally blind.

There is no apparent cause for the dystonia other than trauma.. ...A dogmatic statement concerning a direct relationship between the development of blepharospasm and trauma cannot be made. There are, however, data in the literature which are suggestive.

Given the temporal relationship between Ms. Turner's traumas and the development of symptoms, supported by data presented here, the conclusion that the two events are related must be seriously considered.²⁴

This evidence falls far short of establishing a causal connection between Ms. Turner's dystonia and the accident of May 13, 1991. Dr. Marotta associates the onset of the condition with traumas which occurred in 1989. He does not even mention the accident of May 13, 1991 as a possible triggering event.

The Applicant's counsel argued that I should apply Dr. Marotta's evidence that head injury may cause dystonia to the fact that Ms. Turner was involved in a car accident on May 13, 1991 and that the dystonia worsened after the car accident to conclude, in the absence of any expert opinion on this point, that the car accident of May 13, 1991 aggravated her pre-existing movement disorder.

I cannot extrapolate from Dr. Marotta's report in that manner. I find that Ms. Turner did not suffer a noteworthy head trauma in the car accident of May 13, 1991.²⁵ Even if there was a head trauma, as noted in Dr. Marotta's initial opinion, "in cases of head trauma, the course stabilizes and does not progress." As will be discussed below, Ms. Turner's movement disorder has been slowly progressing since 1989 and continued to progress after the accident.

Other neurologists have stated that they are unaware of any connection between trauma and the onset of blepharospasm²⁶ and have opined that there is no connection between Ms. Turner's blepharospasm and the motor vehicle accident of May 1991.²⁷

I conclude that the expert medical evidence does not support the conclusion that the accident of May 13, 1991 materially contributed to the worsening of her blepharospasm or the development of multi-focal cranial dystonia.

2. Chronology of Symptoms:

Ms. Turner first reported squinting problems and spasms of the eyelids following surgery to repair her right wrist in March 1989.²⁸ These spasms were generally diagnosed by most medical practitioners who saw her as "blepharospasm." Although various practitioners have questioned whether the eyelid spasms were voluntary and non-organic (suggesting that they were caused by emotional or psychological factors), the specialists who saw her on a repeated basis were satisfied that Ms. Turner was indeed suffering from a neurological condition.

Her blepharospasm was serious enough that she was treated with xanax²⁹ and received several botulinum toxin injections around the eyelids prior to the accident.³⁰ In April 1990 she described herself as functionally blind, because her eyes were closed 80 to 90 percent of the time.³¹ One month before the accident, she described the spasms as occurring several times per hour, lasting 30 seconds.³²

Prior to the accident, the spasms had spread to Ms. Turner's cheeks, forehead and neck,³³ although her specialist did not believe that these spasms involved true dystonic movement of the neck and jaw muscles.³⁴

In her accident benefit claim completed in June 1991, Ms. Turner described her initial injuries from the accident as: whiplash, strained ankle, leg, wrist and arm ligaments. She made no mention of an increase in her spasms.³⁵

In September 1991, Ms. Turner began a course of the drug, Artane, for her ongoing blepharospasm. After some initial improvement Ms. Turner suffered a reaction to the drug and experienced a cascade of symptoms, described earlier in this decision. Her blepharospasm continued to be a major disabling factor.³⁶

The spasms in her check and throat became more pronounced in late 1992.³⁷ In February 1993, the possibility of cervical dystonia was first raised.³⁸ By July 1993, Ms. Turner had been diagnosed with multi-focal cranial dystonia, severe in the eyes, moderate to severe in the mouth and moderate in the neck.³⁹ She continued to complain of eyelid, facial, and neck muscle spasms from 1994 onward. She has ceased any drug or injection treatments for this condition.

I conclude that Ms. Turner suffered from a neurological movement disorder from 1989 which gradually progressed from eyelid spasms (blepharospasm), to include spasms of the face, cheek and neck, prior to the accident. These worsened after (but not because of) the accident and were eventually diagnosed as multi-focal cranial dystonia.

3. Relationship between Botulinum Toxin Injections and the Accident:

Ms. Turner testified that she noticed a "flicker" in her cheek for the first time after the accident, and that it was to treat this new, spreading spasm, that she resumed the botux injections in June 1991. She claims that the resulting sagging muscles were caused by the botux injections.

As discussed above, I find that Ms. Turner's spasms had progressed to the cheeks, forehead and neck, before the accident. Therefore it is likely that the injection in the lower jaw in June 1991 was for those spasms. I note that there was no report or evidence from Dr. Kraft, who administered the injections, to connect the injection in her cheek to the motor vehicle accident. In any event, Ms. Turner's sagging facial muscles have since regained their elasticity, and at the hearing, she did not appear to be suffering any lingering effects from these injections.Thus, whether or not the June 1991 injection in her cheek was somehow related to the accident, it is no longer a disabling symptom.

4. Relationship Between Artane and the Accident:

Ms. Turner also argued that she was prescribed the drug, Artane, for her spreading facial spasms, which were not truly "dystonic" prior to the accident.⁴⁰ Accordingly, she argued that her reaction to the drug was a result of the accident. The chronology of her symptoms does not support this argument.

In September 1991, Ms. Turner returned to her movement disorder specialist, Dr. Lang. She did not mention the motor vehicle accident of May 1991, nor did she report any increase in facial spasms. To the contrary, she denied any other (other than her eyelids) facial, oral, jaw movements, change in voice, arm or leg movements that might be interpreted as dystonic.⁴¹Dr. Lang concluded after his examination that she had no facial, lingual or laryngeal dystonia. He concluded that she continued to have blepharospasm, but no evidence of spreading to other parts of the body. He recommended a drug treatment, (Artane), since the botulinum toxin injections were not working.

I conclude that the drug, Artane, was not prescribed because of any new spasms or symptoms which first appeared after the accident. On the contrary, Dr. Lang's consultation note of September 1991 indicates that he prescribed the drug, Artane, for Ms. Turner's ongoing blepharospasm, which had been present since March of 1989. Accordingly, the cascade of symptoms which Ms. Turner experienced from the Artane, is not related to the accident. This is a significant finding, since most of Ms. Turner's ongoing symptoms can be traced to her reaction to the drug, Artane.

Light Sensitivity:

Shortly before the accident, Ms. Turner reported that light triggered the onset of her eyelid spasms.⁴² The first report of light sensitivity after the accident occurred in July 1991.⁴³ By this time, Ms. Turner's light sensitivity had worsened to the point where she began wearing eye shades and remained indoors much of the time.

There was no medical evidence before me relating the onset or aggravation of light sensitivity to the car accident of May 1991. When describing her injuries sustained in the accident in her accident benefit claim form on June 11, 1991, Ms. Turner made no mention of light sensitivity.⁴⁴Initially, Ms. Turner believed that her light sensitivity was a side effect of the botulinum toxin injections she was receiving.⁴⁵ This suggests that she noticed some temporal connection between the injections and the light sensitivity, rather than between the accident and light sensitivity. Ms. Turner has not satisfied the evidentiary onus of demonstrating that the motor vehicle accident materially contributed to the onset or aggravation of her light sensitivity.

Further, I am not satisfied that Ms. Turner's light sensitivity continuously prevents her from working as an administrative assistant, editor or writer. I am satisfied, that with the use of dark glasses, Ms. Turner is able to function indoors.

Neck Problems:

Ms. Turner has been complaining of neck pain and spasms since the accident. I am satisfied that the mechanism of the accident as described by Ms. Turner would likely have caused a whiplash effect and aggravated her pre-existing neck problems for some time after the accident. However, I am also satisfied that by May 1994, three years after the accident, Ms. Turner's neck had recovered from the aggravating effects of the accident. While Ms. Turner continues to experience symptoms of pain, stiffness, tension, and spasm in her neck, these ongoing symptoms are more likely than not attributable to her pre-existing neck problems and her multi-focal cranial dystonia.

Ms. Turner had been experiencing neck pain, tension and stiffness for many years prior to the accident. Early degenerative disc disease at the C5-6 level was discovered in May 1989.⁴⁶ The June 1989 car accident caused a whiplash injury and tenderness at the C4-5 level⁴⁷ and cervical muscle spasms.⁴⁸ By October 1989 she continued to experience tenderness at the C2, C3, C5 level and exhibited symptoms of facet joint syndrome. By the spring of 1990, her neck pain and range of motion had improved. However, in January 1991, she sought out additional physiotherapy treatment for her chronic neck pain.⁴⁹ She was receiving chiropractic treatments every 2 to 3 weeks to reduce neck stiffness prior to the accident. Immediately after the accident, Ms. Turner experienced an exacerbation of her neck pain and continued her chiropractic treatment, on a weekly basis, until June 1992, when she reduced her treatment to every two weeks. She also began massage therapy from June 1992 until May 1994 for the pain and spasms in her neck. Despite this treatment, she experienced progressive stiffening of her neck muscles.

i) Muscle Spasms

The medical evidence demonstrates that Ms. Turner's neck stiffness and muscle spasms are associated with her progressing cranial dystonia⁵⁰ rather than ongoing whiplash symptoms.

ii) Kypholodosis

Ms. Turner was noted to have kypholodosis, or loss of normal curvature of the cervical spine, before the accident, and there was no significant change after the accident.⁵¹

iii) Loss of Motion Segment Integrity at C3 level

An analysis of Ms. Turner's cervical spine in 1996 revealed that she had loss of motion segment integrity at the C3 level. The meaning of this finding is unclear. Dr. Baird, who performed the assessment emphasized that this is indicative of an impairment, which alerts the specialist to do further tests. An MRI of the cervical spine conducted in March 1998 indicated no significant abnormalities.

Whether or not a loss of motion segment integrity is a significant objective finding, the evidence does not demonstrate that this finding is related to the accident of May 1991. As outlined above, Ms. Turner has experienced several injuries to her neck area prior to the 1991 accident and was experiencing considerable neck pain for many years prior to the accident. There was no medical evidence connecting this loss of motion segment integrity, first uncovered in April 1996, with the 1991 motor vehicle accident.

I am satisfied that by May 1994, Ms. Turner's symptoms of pain and stiffness in her neck which were aggravated by the accident had resolved, and she had returned to her pre-accident level of pain and stiffness.

Finally, even if Ms. Turner's continued symptoms of pain and stiffness of the neck could be related to the accident, I am not satisfied those symptoms disable her from returning to work as an administrative assistant, editor or writer.⁵²

Thoracic Back Pain:

An MRI of the spine conducted on April 28, 1998 indicated a lesion approximately 3 mm wide and 6 mm long at the T6-7 level of the spine. The lesion is bony in nature and touches the covering of the spinal cord.⁵³ Ms. Turner alleges that this lesion is disabling and may require surgery.

First, I am not satisfied that the evidence demonstrates a connection between the bony lesion and the accident of May 1991. Ms. Turner had experienced pain in the thoracic region of her back, and sought chiropractic treatment for this area long before the accident.⁵⁴ She did not report any sudden or significant increase in pain in the thoracic region after the accident.⁵⁵ The lesion was not discovered until March 1998. Dr. Chong, the physician who ordered the MRI and interpreted the results as significant, assumed that the lesion was caused by the accident because Ms. Turner told him that she was functioning well before the accident and not functioning well after the accident.

Even if the accident may have aggravated a pre-existing weakness in the thoracic area, by May 1994, when she began seeing Dr. Jaconello, pain in the thoracic area was not a significant symptom. There is scarcely a mention of thoracic pain from 1994 until the MRI disclosed the lesion at T6. In fact, when drawing a pain diagram just prior to the MRI, Ms. Turner indicated pain just about everywhere else, except at the T6 level. Dr. Chong conceded that it is possible that the lesion is simply asymptomatic⁵⁶ and that Ms. Turner's generalized pain complaints are more consistent with a chronic pain syndrome, than attributable to the lesion at T6-7. I conclude that notwithstanding the presence of a bony lesion at C6-7, this is not causing Ms. Turner's complaints of back pain.

Finally, even if the bony lesion was caused or aggravated by the accident of May 1991, and even if the thoracic back pain is related to the bony lesion, I am not satisfied that this pain is disabling. As mentioned earlier, there were no significant complaints of pain in the thoracic area after May 1994. Once the thoracic injury was disclosed, Ms. Turner did appear to notice more problems in that area. However, the level of discomfort reported is not functionally disabling. The only neurological evidence before me indicates that the lesion does not require surgery.⁵⁷

Low Back Pain:

Ms. Turner had a long history of low back pain prior to the accident.⁵⁸ She suffered a compression fracture of the L1 vertebrae in the March 1989 skating accident, which was further exacerbated by the June 1989 car accident.⁵⁹ She was left with chronic low back pain,⁶⁰ which was not disabling at the time of the accident of May 13, 1991.

The accident aggravated Ms. Turner's pre-existing back pain for some time after the accident.⁶¹However, by April 1994, the low back pain was no longer a significant symptom.⁶²

Jaw Pain:

Ms. Turner testified that she noticed a buzzing in her jaw after the accident.⁶³ She described a loss of enamel and loosening of her teeth. She noticed increasing stiffness in her face and jaw over the years. She was eventually diagnosed with temporomandibular joint pain, which she relates to the accident.

The documented complaints of jaw pain do not support an inference that the accident of May 1991 made a material contribution to Ms. Turner's TMJ condition. There are references in her medical records to complaints of jaw pain after the June 1989 accident.⁶⁴ She also reported a tensing of her jaw muscles associated with her eyelid spasms prior to the accident of May 1991.⁶⁵

Most significantly, there is lack of any reported complaints of jaw problems until late 1992.⁶⁶

The first recorded complaint about dental problems did not occur until late November 1992, when a counsellor noted that Ms. Turner had impacted wisdom teeth and recommended extraction.⁶⁷ Ms. Turner had her molars removed in December 1992. She noticed a significant worsening of pain following the surgery.⁶⁸ The medical records first indicate complaints of tenderness in the TMJ joints in March 1993.⁶⁹ From that point on, Ms. Turner's TMJ complaints intensified. Her movement disorder specialist started noting associated spasms of the jaw.⁷⁰

In light of the above chronology of events, I am not satisfied that Ms. Turner's TMJ complaints are related to the motor vehicle accident of May 1991.

Autoimmune Disease:

In mid-1992, Ms. Turner's specialists began to suspect that she suffered from an autoimmune condition.⁷¹ Eventually, she was diagnosed as likely having Sjogren's syndrome.⁷² Dr. Jaconello testified that Ms. Turner's immune system is in a constant pre-inflammatory state.

Sjogren's syndrome is a chronic, slowly progressive autoimmune disease characterized by lymphocytic inflilation of the exocrine glands resulting in xerostomia (dry mouth) and dry eyes. Approximately one-third of patients present with extraglandular (systemic) manifestations. The disease can be seen alone (primary Sjogren's syndrome) or in association with other autoimmune rheumatic diseases such as rheumatoid arthritis, systemic lupus erythematosus, or scleroderma (secondary Sjogren's syndrome).⁷³

Dr. Perry Rush, a specialist in Rheumatology and Physical Medicine and Rehabilitation, gave his written opinion that Sjogren's Syndrome is not caused by car accidents. Dr. Jaconello, on the other hand, testified that any disease process requires multiple triggers to manifest itself, and that in his opinion, the accident of May 13, 1991 was the final trigger that unmasked this condition.

I attribute very little weight to Dr. Jaconello's opinion on causation. Dr. Jaconello is a family physician with an interest in nutritional medicine. He has no expertise in autoimmune disorders. His opinion on causation is not based on his medical expertise, but on his inference that, since Ms. Turner was functioning before the accident, and not functioning after the accident, the accident must have "unmasked" this autoimmune condition. I find it surprising that Dr. Jaconello could reach this conclusion without reviewing any medical records relating to Ms. Turner's condition prior to August 1994, when she first became his patient. Dr. Jaconello's opinion is based exclusively on Ms. Turner's account of the onset and progression of her symptoms, which I have found earlier to be unreliable. I also find it difficult to follow Dr. Jaconello's logic that it was the relatively minor car accident of May 1991, rather than the severe skating accident of March 1989, the car accident of June 1989, the various slips and falls in 1989, or the adverse reaction to the drug, Artane in September 1991, which triggered the unmasking of the autoimmune condition.

Ms. Turner has not satisfied the onus of establishing that the motor vehicle accident of May 13, 1991 made a material contribution to the onset or worsening of her autoimmune condition.

Conclusions on Ongoing Income Replacement Benefits:

By May 1994 Ms. Turner had recovered from the effects of the accident of May 1991, although she continued to experience disabling symptoms unrelated to the accident. Accordingly, Ms. Turner is not entitled to income replacements benefits beyond May 13, 1994.

Medical Expenses:

Ms. Turner seeks payment for expenses incurred to August 1996 in the amount of $6,395.96, for Dr. Jaconello's account, Dr. Sigesmund's TMJ treatment, and expenses incurred to have her yard work performed by outside contractors. Additionally, I heard evidence that Ms. Turner has been denied payment for a variety of nutritional supplements, vitamins, and minerals, as well as ongoing sacral cranial massage, regular massage, and chiropractic treatment. The Insurer paid for physiotherapy expenses and pain management therapy, despite its position that the expenses were not related to the accident. The parties seek a determination whether these medical expenses are payable under section 6 of the Schedule⁷⁴

I will address each category of medical and rehabilitation expenses referred to in evidence and leave it to the parties to sort out the amounts owing, if any.

The cost of providing medical reports to support Ms. Turner's claim for benefits is a medical benefit payable under section 6 of the Schedule⁷⁵

In light of my conclusion that Ms. Turner's autoimmune condition is not related to the accident, the cost of nutritional supplements, vitamins and minerals, to strengthen Ms. Turner's immune system are not reasonable expenses resulting from the accident.

In light of my conclusion that Ms. Turner's TMJ condition is not related to the accident, TMJ expenses are not reasonable expenses resulting from the accident.

In light of my conclusion that Ms. Turner had returned to her pre-accident condition by May 1994, expenses for yard work after May 1994 are not reasonable expenses relating to the accident.

I am not satisfied that Ms. Turner required ongoing physiotherapy, pain management, chiropractic treatment, massage therapy, or sacral cranial therapy after May 13, 1994 as a result of injuries sustained in the accident. While Ms. Turner may continue to experience minor residual symptoms related to the accident, I am satisfied that these therapies are directed primarily at her non-accident related difficulties.

EXPENSES:

Ms. Turner filed her Application for Arbitration in February 1995. Accordingly, my discretion is limited to awarding or denying her expenses.

I am satisfied that Ms. Turner sincerely believed that her ongoing difficulties were related to the May 1991 accident. Although Ms. Turner was unsuccessful in establishing causation, the issue was complex. Many medical practitioners supported Ms. Turner's position. I conclude that Ms. Turner is entitled to her expenses of this arbitration proceeding.

August 6, 1999

M. Kaye Joachim

Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 153

FSCO A-012411

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

L. MARGARET R. TURNER

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Ms. Turner is not entitled to weekly income benefits beyond May 13, 1994.

2. Ms. Turner is not entitled to supplementary and medical expenses beyond May 13, 1994.

3. Ms. Turner is entitled to her expenses of this arbitration proceeding.

August 6, 1999

M. Kaye Joachim

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. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
3. 3(June 30, 1998, OIC A96-001590).
4. 4The Insurer argued that this version of the Dispute Resolution Practice Code was not in effect when the application was filed. However, it was in effect before the commencement of the proceedings, as Applicant's counsel specifically referenced it prior to the hearing in October 1998. The Dispute Resolution Practice Code addresses procedural issues. It applies to proceedings which may have been commenced before the specific rule was passed.
5. 5Exhibit 6, Tab F11.
6. 6Alderson et al v. Callaghan et al (1998), 1998 CanLII 895 (ON CA), 40 O.R. (3d) 136 (Ont. C. A.); Matichuk and Commercial Union Assurance Company (March 19, 1999, FSCO A98-000318) and cases cited therein.
7. 7Exhibit 6, Tab F1, Ms. Turner reported to her chiropractor, Dr. Julia Alleyne, in January 1991, that she skated once a week.
8. 8Exhibit 8, Tab 24, Dr. Joyce M. Allman, February 21, 1995.
9. 9Exhibit 5, Tab 2, pp. 51-53, Dr. Billings, April 12, 1991.
10. 10Exhibit 5, Tab 2, pp. 51-53, Dr. Billings, April 12, 1991.
11. 11Injuries reported on Accident Benefit claim, June 11, 1991, Exhibit 8, Tab 1, p. 61 and in a written statement, June 11, 1991, Exhibit 7, pp. 6-9.
12. 12The evidence suggests that Ms. Turner gradually cut back on her driving after the accident, until she ceased voluntarily in September 1991. Exhibit 5, Tab A9, August 27, 1991, Dr. G. T. Riley. Dr. Riley notes that Ms. Turner had virtually stopped driving her car, except for short trips to town. However, Ms. Turner indicated to others that she was still driving from Mississauga to Toronto for ice skating lessons, twice a week, until August 1991. (Exhibit 8, Tab 1, p. 120, Letter to Insurer, April 6, 1992). During her visit to Dr. Lang on September 3, 1991, Ms. Turner admitted concern about her driving, in light of her vision difficulties, but protested when Dr. Lang suggested she should not drive until her eye condition improved. She voluntarily ceased driving in September 1991, (Exhibit 8, Tab 1, p. 83), although she was assessed in December 1991 at the Hugh MacMillan Medical Centre as capable of driving.
13. 13Exhibit 8, Tab 1, p. 120, Letter to Insurer, April 6, 1992.
14. 14Exhibit 8, Tab 1, p. 1.
15. 15I note that Mr. Kyle was testifying about events which occurred nine years earlier, without the benefit of notes. He would have had no reason to particularly note Ms. Turner's specific physical symptoms, as he had not been retained in connection with her injuries. To the extent that some of Mr. Kyle's observations are inconsistent with the preponderance of other evidence, I am satisfied that Mr. Kyle has either mistaken the date or the symptoms he described seeing as early as July 1991. For example, Mr. Kyle's observations about Ms. Turner's difficulties with her jaw are inconsistent with the other evidence, discussed below.
16. 16Dr. Riley's Reports can be found at Exhibit 5, Tab 9, August 27, 1991; Exhibit 5, Tab B2, October 3, 1991 and March 2, 1992.
17. 17Exhibit 6, Tab E2, Reports of Rehabilitation Consultant summarizing conversation with Dr. Riley, June 29, 1992, December 16, 1992.
18. 18Exhibit 6, Tab F8, November 11, 1994, Dr. Jaconello.
19. 19Exhibit 6, Tab F8, April 8, 1996, Dr. Jaconello.
20. 20Exhibit 8, Tab 1, p. 1, Home Care started, January 1992. In her application for "Oakville care-A-van" service, she attributed her difficulty walking to the medication taken for her movement disorder. Exhibit 8, Tab 1, p. 65.
21. 21Exhibit 8, Tab 30, Report of Dr. Perry Rush.
22. 22Exhibit 5, Tab B13, Report of Dr. J. Marotta, January 24, 1994.
23. 23Exhibit 5, Tab B13, Application for Out-Of-Country Health Services, Dr. J. Marotta, January 19, 1994.
24. 24Exhibit 5, Tab 36, Report of Dr. J. Marotta, May 3, 1994.
25. 25Despite Ms. Turner's description of her head bouncing back and forth between the headrest and the car seat, Dr. Riley, her family doctor for the first year after the accident, never raised the possibility of trauma to the head.
26. 26Exhibit 5, Tab 2, p. 47, Report of Dr. J. W. Norris, Neurologist, July 19, 1989.
27. 27Exhibit 7, p. 117, Response of Dr. Ranali, January 21, 1994.
28. 28Exhibit 5, Tab 2, p. 45, Sunnybrook Hospital, Ophthalmology Department, June 6, 1989.
29. 29Exhibit 6, Tab F10, Health Questionnaire, January 28, 1990.
30. 30Exhibit 5, Tab 10, September 3, 1991, Consultation Report from Dr. Lang to Dr. S. Kraft. Dr. Lang confirms history of botulinum toxin injections commencing in May 1990, resuming in December 1990, and every two months since until July of 1991. This is partially confirmed by the OHIP summary which notes "nerve blocks - retro bulbar injection" on May 9, 1990, September 24, 1990, December 12, 1990, February 11, 1991 and "botulinum toxin injections" on June 20, 1991 and July 19, 1991.
31. 31Exhibit 5, Tab 5, Dr. Anthony E. Lang, April 4, 1990.
32. 32Exhibit 5, Tab 2, Report of Dr. Billings, psychiatrist, April 12, 1991. In February 1991, she described the blepharospasm as occurring several times an hour, all day long. Exhibit 5, Tab 2, Report of Dr. Norris, February 27, 1991.
33. 33Exhibit 5, Tab B1, Dr. Stephen P. Kraft, September 13, 1989. Dr Kraft referred Ms. Turner to Dr. Anthony E. Lang, because of her associated facial and neck spasms. Dr. Julia Alleyne, chiropractor, noted facial spasms affecting Ms. Turner's eyes, cheeks and forehead, in January 1991. Exhibit 8, Tab 1, p. 53.
34. 34Exhibit 5, Tab 5, Dr. Anthony E. Lang, April 4, 1990.
35. 35Exhibit 8, Tab 1, Accident Benefit Claim, June 11, 1991.
36. 36Exhibit 5, Tab B2, Dr. Riley, October 3, 1991; Exhibit 8, Tab 1, p. 157, Dr. Curran-Blaney, January 1992; Exhibit 5, Tab B6, Report of Dr. Riley, March 2, 1992;
37. 37Exhibit 5, Tab B8, Report of Dr. R. J. Amy, October 27, 1992; Exhibit 5, Tab 23, Report of Dr. O. Veidlinger, March 3, 1993. Dr. Veidlinger felt blepharospasm was part of general facial and neck spasm.
38. 38Exhibit 5, Tab 23, Dr. Kevork, February 10, 1993.
39. 39Exhibit 6, Tab D13, Dr. Maureen Shandling, July 6, 1993; Exhibit 6, Tab D16, Dr. Shandling, September 14, 1993; Exhibit 6, Tab D17, Dr. Shandling, November 22, 1993; Exhibit 6, Tab D18, Dr. J. T. Marotta, November 26, 1993.
40. 40Exhibit 5, Tab 5, Dr. Anthony E. Lang, April 4, 1990. Dr. Lang found no true dystonic involvement of the neck and jaw muscles in April 1990.
41. 41Exhibit 5, Tab 10, Dr. Lang, September 3, 1991.
42. 42Exhibit 5, Tab 2, p. 55, Dr. Norris, February 27, 1991 and Exhibit 5, Tab 2, pp. 51-53, Dr. Billings, April 12, 1991.
43. 43Exhibit 5, Tab 7, Report of Dr. R. J. Amy, July 8, 1992.
44. 44Exhibit 8, Tab 1, p. 61.
45. 45Exhibit 7, p. 26, Report of Rehabilitation Consultant, March 13, 1992. Exhibit 6, Tab D4, Report of Dr. William F. Brown, April 23, 1992.
46. 46Exhibit 5, Tab 2, p. 40, X-ray, May 3, 1989. Exhibit 5, Tab 2, p. 44, X-ray of cervical spine, June 5, 1989.
47. 47Exhibit 5, Tab 2, pp. 43ff, Emergency Report, June 5, 1989.
48. 48Exhibit 5, Tab 2, p. 46, Fracture Clinic, June 14, 1989. See also, Exhibit 5, Tab B16, Clinical notes and records of Dr. Allman, X-ray, October 23, 1989.
49. 49Exhibit 6, Tab F1, Dr. Julia Alleyne, January 30, 1991.
50. 50Exhibit 5, Tab B1, Dr. Stephen P. Kraft, September 13, 1989. Exhibit 5, Tab 5, Dr. Anthony E. Lang, April 4, 1990. Exhibit 5, Tab. 23, Dr. Kevork, February 10, 1993. Dr. Kevork associated Ms. Turner's neck spasms with cervical dystonia. Exhibit 5, Tab 23, March 3, 1993, Dr. O. Veidlinger associated her blepharospasm with neck spasms. Exhibit 6, Tab D17, November 22, 1993, Dr. Maureen Shandling associated Ms. Turner's neck pain with multi-focal cranial dystonia. Exhibit 5, Tab D18, November 26, 1993, Dr. J. T. Marotta associated Ms. Turner's neck spasms with her dystonic condition and rated her dystonia as moderate in the neck. Exhibit 5, Tab 31, November 25, 1993, Dr. J. A. Denburg noted blepharospasm and associated spasm of the neck.
51. 51Exhibit 5, Tab 2, p. 46, Fracture Clinic, June 14, 1989. Exhibit 5, Tab B16, Clinical notes and records of Dr. Allman who notes minimal changes in x-rays since 1989.
52. 52By January 1993, Ms. Turner's neck movements were within the normal range, although she experienced discomfort. (Exhibit 6, Tab E4, Functional Capacity Evaluation, January 11, 1993). Good cervical range of motion was confirmed in September 1995. (Exhibit 2, Tab 5, Rothbart Pain Management Clinic, September 28, 1995).
53. 53Exhibit 3, Tab 4, pp. 1197 ff.
54. 54When Ms. Turner began chiropractic treatment with Dr. Allman in October 1989, she indicated pain and stiffness between the shoulder blades, in the thoracic region.(Exhibit 5, Tab B16). An examination at this time revealed tenderness at T1 and T6 level. Her upper back continued to present problems by the spring of 1990. Exhibit 8, Tab 24, March 21, 1995, Report of Dr. Allman.
55. 55Exhibit 8, Tab 1, p. 61, Accident Benefit Claim, June 11, 1991.
56. 56Dr. Chong testified that this physical lesion could account for some of Ms. Turner's symptoms, although he agreed that the pain diagram she drew prior to the test did not correspond with pain at the T6-7 level, which is just below the tip of the shoulder blades. However, he felt that the lesion could cause associated muscle spasms above and below the structural problem. He conceded that Ms. Turner's description of her symptoms was more consistent with a chronic pain syndrome than with a specific structural lesion at the T6-7 level. Dr. Chong also testified that some persons may not experience pain with this type of lesion.
57. 57Exhibit 3, Tab 9, Dr. Duncan, June 10, 1998.
58. 58Ms. Turner reported to Dr. Norris, that she had a 30-year history of low back pain, sometimes confining her to bed. Exhibit 5, Tab 2, p. 47, July 19, 1989, Dr. J. W. Norris.
59. 59Exhibit 5, Tab 2, p. 46, June 14, 1989, Fracture Clinic. Ms. Turner was complaining of chronic lumbar spasms.
60. 60Exhibit 5, Tab 8, Tab 24, Report of Dr J. M. Allman, chiropractor, February 2, 1995; Exhibit 6, Tab F10, January 28, 1990, Health Questionnaire.
61. 61X-rays of the lumbar spine were taken in November 1991. I infer that the x-ray was prompted by complaints from Ms. Turner. Exhibit 8, Tab 1, p. 66, X-ray, November 28, 1991. The x-rays revealed mild degenerative disc disease at L4-5 and L5-S1 with slight narrowing at L5-S1 and facet joint arthritis at L4-L5 and L5-S1. Ms. Turner received massage therapy for, among other complaints, pain in the lower back, from June 1992 to May 1994. Exhibit 8, Tab 23, January 31, 1995, T. E. Lewis, Registered Massage Therapist. Dr. Rado diagnosed, among other things, lumbar myofacial strain in July 1992. Exhibit 6, Tab E3, July 21, 1992. During a functional capacity evaluation in January 1993, Ms. Turner complained of, among other things, lumbar pain. Exhibit 6, Tab E4, January 11, 1993, Functional Capacity Evaluation.
62. 62Exhibit 6, Tab C4, April 4, 1994, Dr. E. J. White, Insurer Medical Examination and Functional Capacity Evaluation. When Ms. Turner began to see Dr. Jaconello in May 1994, she did not remark upon her low back pain.
63. 63She reported to Dr. Grushka in November 1994, that she first noticed the buzzing after she began to take the drug, Artane, Exhibit 5, Tab 38, January 26, 1995, Dr. Grushka.
64. 64Exhibit 5, Tab 2, p. 46, June 14, 1989, Fracture Clinic.
65. 65Exhibit 5, Tab B1, September 13, 1989, Dr. Stephen P. Kraft. Exhibit 5, Tab 5, April 4, 1990, Dr. Anthony E. Lang noted tension in jaw, but no true dystonic involvement of jaw muscles at this time.
66. 66In Exhibit 5, Tab A46, Dr. L. M. Budolowski, June 3, 1996, Dr. Budolwski stated that he treated Ms. Turner from January 1983 until November 1991. According to his records, there were no symptoms relating to a TMJ problem prior to "the vehicular accident." He noted that the there were discussions of jaw pain and discomfort after the accident and he recommended that Ms. Turner see an oral surgeon. Ms. Turner relies on this report as evidence that she made complaints of jaw pain after the May 13, 1991 accident. However, Dr. Budolowksi does not mention the date of the vehicular accident which preceded the reports of jaw pain. Given the documented complaints of jaw pain after the June 1989 car accident, Dr. Budolowski's report could equally be referring to the June 1989 accident. Further, Ms. Turner made no mention of any teeth or jaw problems when she made her written statement to the Insurer and filed her application for benefits on June 11, 1991. Dr. Riley, her family doctor until 1992, makes no mention of any reports of jaw pain. Ms. Turner did not mention any jaw symptoms to her rehabilitation consultant when she reported her condition from March 1992. Dr. Curran-Blaney, who began seeing Ms. Turner in late 1992, did not record any complaints of jaw pain. Timothy Lewis, who provided massage therapy from June 1992 to May 1994 did not note any complaints of jaw pain, although he noted other complaints about the face.
67. 67Exhibit 5, Tab 61. November 27, 1992, Report of Kim Shallcross.
68. 68Exhibit 6, Tab C1, June 11, 1993, Dr. Psutka, oral and maxillofacial surgeon. Dr. Psutka reported that Ms. Turner advised him that pain began a year previously (June 1992), worsened in the fall of 1992 and significantly worsened following the removal of mandibular third molars in December 1992.
69. 69Exhibit 5, Tab 25, March 8, 1993. Mr. Dennis Chong referred her to Dr. Psutka for a suspected TMJ problem. Exhibit 6, Tab D10, March 25, 1993, Pain and Headache Management Clinic. Michael Moore noted tenderness over the TMJ.
70. 70Exhibit 6, Tab D8, November 26, 1993, Dr. J. T. Marotta.
71. 71Exhibit 5, Tab 16, July 1, 1992, Dr. Brain, Exhibit 6, Tab D5, July 2, 1992, Dr. Brain; Exhibit 5, Tab 17 July 9, 1992, Dr. J. Doctor; Exhibit 8, Tab 1, p. 208, August 20, 1992, Immunology Clinic; Exhibit 5, Tab 20, October 14, 1992, Dr. Brain; Exhibit 6, Tab D 8, November 5, 1992, Dr. John Turnbull; Exhibit 6, Tab D16, September 14, 1993, Dr. M. Shandling; Exhibit 5, Tab 31, November 25, 1993, Dr. J. A. Denburg.
72. 72Exhibit 3, Tab 10, p. 1318, February 21, 1996, Dr. J. A. Denburg, Exhibit 2, Tab 7, March 15, 1997, Report of Dr. A.A. M. Bookman, Multi-disciplinary Sjogren's Clinic.
73. 73Exhibit 8, Tab 30, Dr. Perry Rush.
74. 74Initially the Insurer sought repayment of physiotherapy and pain management therapy expenses. However, during the final argument the Insurer withdrew its request for repayment.
75. 75It is not clear whether Dr. Jaconello's account was for the cost of providing medical reports or the cost of providing nutritional supplements. If it is the former, then it is payable as an expense under section 6.