Financial Services Commission of Ontario

Neutral Citation: 1999 ONFSCDRS 161 FSCO A97-000881

Between: Maria Perkovic, Applicant and Allianz Insurance Company of Canada, Insurer

Reasons for Decision

Before: Donald Hale Heard: July 12, 13 and 14, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Joseph J. Rizzotto for Mrs. Perkovic Edmund W. Kent for Allianz Insurance Company of Canada

Issues:

The Applicant, Maria Perkovic, was injured in a motor vehicle accident on December 4, 1991. She applied for and received statutory accident benefits from Allianz Insurance Company of Canada ("Allianz"), payable under the Schedule.¹ Allianz terminated weekly income benefits on December 4, 1994. The parties were unable to resolve their disputes through mediation, and Mrs. Perkovic 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. Perkovic entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule from December 4, 1994, and ongoing?
2. Is Mrs. Perkovic entitled to interest on any amounts owing?
3. Is Mrs. Perkovic entitled to her expenses incurred in this arbitration proceeding?

Result:

1. Mrs. Perkovic is entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule from December 4, 1994, and ongoing.
2. Mrs. Perkovic is entitled to interest on any amounts owing.
3. The issue of expenses may now be spoken to.

EVIDENCE AND ANALYSIS:

Background:

Mrs. Perkovic was born on July 12, 1942 and is of Croatian descent. She is the middle of 10 children and grew up on a tobacco farm operated by her parents in Bosnia, then a province of Yugoslavia. After completing eight years of schooling, she entered a Roman Catholic convent and became a nun. Mrs. Perkovic served in various capacities at Catholic churches, monasteries and convents for 12 years. After her mother became ill, Mrs. Perkovic returned to the family home to care for her. Following her mother's death, Mrs. Perkovic took a job at a church-operated hotel in Austria, working as a chambermaid for three and one-half years. There she began corresponding with her future husband, a native of Bosnia who had been living in Canada since 1966. After meeting with him in Austria, she married Mr. Perkovic and emigrated to Canada in 1978.

The couple purchased a home and Mrs. Perkovic had four children between 1979 and 1984, three boys and a girl. In 1987, Mr. and Mrs. Perkovic moved into their present home in Etobicoke. Mrs. Perkovic does not speak English and gave her evidence at the arbitration hearing in Croatian with the assistance of an interpreter.

The Accident:

The motor vehicle accident which gave rise to Mrs. Perkovic's injuries occurred on Highway 401 near Napanee, in icy and snowy conditions, on the morning of December 4, 1991. The Perkovic family was on their way to a demonstration on Parliament Hill in Ottawa. Mr. Perkovic was driving the car when he lost control on a patch of ice. The car flipped over first on its right side and came to rest on its roof. Passers-by helped the family members from the car, and the police arrived and took them to a nearby Ontario Provincial Police detachment. Mrs. Perkovic refused to go to a hospital, insisting that the family return home instead. Mr. Perkovic was able to rent a car and return to Toronto later that day.

Immediately following the accident, Mrs. Perkovic noticed that her hands were bleeding and that her neck was very painful. She is unsure whether she lost consciousness, but felt disoriented and frightened. Upon her return home that evening, Mrs. Perkovic attended at the office of her family doctor, Dr. Mladen Seidl.

Essential Tasks:

In 1978-79, Mrs. Perkovic had worked for several months as a sewing machine operator, stitching together men's suits. She also worked at a dry cleaning plant pressing men's pants. Between 1981 and 1991, Mrs. Perkovic worked at Weston Bakeries as a seasonal assembly line worker. Her employment each year began in June and ended in December and involved the production and packaging of Christmas cakes and cookies. Mrs. Perkovic worked on the night shift from 11:00 p.m. to 7:00 a.m., Monday to Friday. Mrs. Perkovic was also employed part-time, for two to three hours each weekday and Saturday, as a cleaner at a car dealership during the same six months of the year she was working at Weston Bakeries.

Mrs. Perkovic testified that her duties at Weston Bakeries included lifting boxes weighing 30 pounds from an assembly line at waist-level onto skids on the floor. She indicated that she would perform this task 100 times per hour. On cross-examination, she admitted that the boxes contained 20 one-pound cakes and that she would normally perform this job for two hours of her eight-hour shift. The Employer's Confirmation of Income completed on February 14, 1992 indicated that Mrs. Perkovic's job did not require that she lift more than 12 pounds.

Her responsibilities as a cleaner at the car dealership involved using a vacuum cleaner, emptying garbage cans, cleaning the washrooms and dusting for two or three hours per day.

Mrs. Perkovic described her typical day prior to the accident in her testimony. I note that she described only a day in the six-month period of each year when she was employed, rather than a typical day in the six months of the year when she was not working. Mrs. Perkovic indicated that she would return from work at Weston Bakeries after 7:00 a.m. and help her children get ready for school. She would then sleep until 3:00 or 4:00 p.m. when she would prepare dinner for her children and husband and serve it to them. Between 6:00 p.m. and 8:00 or 9:00 p.m. Mrs. Perkovic would go to her cleaning job, return home to change and then arrive at her job at Weston Bakeries by 11:00 p.m. Mrs. Perkovic also testified that she did all of the cooking and laundry in the household prior to the accident, as well as the majority of the house cleaning.

Following the accident, Mrs. Perkovic's life changed dramatically. She described a typical day now as follows. After getting up at 6:00 a.m., Mrs. Perkovic gets dressed, makes herself coffee and goes out into the yard to walk and pray there. Since the spring of this year, Mrs. Perkovic has been attending Mass each morning at a church which is a 15-minute walk from her home. After church, Mrs. Perkovic walks home and makes her lunch, consisting of rice, pasta, salad or eggs. Following a rest, Mrs. Perkovic then walks to a local park to visit friends or has them come to visit her at her home. She also indicated that she may take another walk in the afternoon for 15 minutes.

Mr. and Mrs. Perkovic testified that Mrs. Perkovic does almost nothing in the way of housekeeping. Mr. Perkovic indicated that she no longer even makes her own bed. He also testified that he has essentially asked her not to do anything around the house, in order to minimize her complaints about pain.

Mrs. Perkovic testified that, for a year or two following the accident, she continued to cook for the family but stopped doing so because her family didn't like her cooking anymore. The housework is now performed by Mr. Perkovic and Anna, their 14-year-old daughter. Except for attending church on Sundays, the family does not participate in any activities together and have not taken any meals together since a Christmas dinner at Mr. Perkovic's brother's home. It was clear to me that this is not a happy household. The recriminations over the cause of the accident and its aftermath have shattered this family and adversely affected the relationship between Mr. and Mrs. Perkovic. The loss of Mrs. Perkovic's income has also adversely affected the family.

Medical Evidence:

Dr. Seidl's clinical notes respecting Mrs. Perkovic's attendance at his office on the day of the accident indicates that she complained of intense pain in her neck, head, left knee and right shoulder blade and numbness in her right index and middle fingers. Dr. Seidl observed that Mrs. Perkovic was bruised and that her right forearm was slightly swollen. He prescribed pain medication for her and sent her home. Mrs. Perkovic attended at Dr. Seidl's office again on December 11, 1991, complaining of pain in her neck and shoulders. Dr. Seidl again prescribed medication for her and sent her home. Following a third visit on December 20, 1991, Dr. Seidl sent Mrs. Perkovic to have X-rays taken of her neck. These revealed that she had sustained a fracture of the C6-C7 facet joint in her neck. Mrs. Perkovic was admitted to St. Joseph's Health Centre on December 24, 1991 where she reported pain in her neck and numbness in her right hand to the admitting staff.

On December 27, 1991, Dr. Martin Roscoe, an orthopaedic surgeon at St. Joseph's Health Centre, fitted Mrs. Perkovic with a "halo" device intended to return the displaced C6 and C7 facet joints to their proper position. Following the successful completion of this procedure, Mrs. Perkovic spent the next three weeks in St. Joseph's, including several days in traction bearing heavy weights on her neck and back. Upon her discharge, Mrs. Perkovic continued to wear the halo device for a further three months. At the time of her discharge, Dr. Roscoe reported that while she still complained of some numbness in her right arm, no actual weakness was present. Dr. Roscoe continued to see Mrs. Perkovic periodically as an out-patient until her final discharge from his care in December 1994. At that time, he noted that although Mrs. Perkovic continued to complain about headaches and pain in her neck, she had an excellent range of motion in her neck. He also noted that X-rays revealed that her fracture was properly aligned and that "really she has healed up very nicely."

Dr. Seidl continued to treat Mrs. Perkovic until August 1993. He recorded that Mrs. Perkovic complained of headaches, swelling in her legs and an irregular heart beat. In June of 1992, Dr. Seidl diagnosed Mrs. Perkovic as suffering from hypertension and depression and prescribed medications to lower her blood pressure and address her depressive state. In July 1992, Mrs. Perkovic first reported to Dr. Seidl that she was experiencing low back pain, swollen ankles and fear of riding in a car.

Mrs. Perkovic attended a three-month physiotherapy program at St. Joseph's Health Care Centre in the spring of 1992. She participated in a further 11 weeks of intensive daily physiotherapy and counselling at the Columbia Centre, beginning in May 1993. Included in this program was a three-week extension to allow for the completion of a functional abilities evaluation to be conducted by the Canadian Centre for Occupational Injury Reduction (CCOIR). Subsequently, a physiotherapist attended at Mrs. Perkovic's home to give her massage treatments. This continued for six to eight weeks. She was also taking an anti-inflammatory medication for pain relief at this time.

In July 1993, the case manager retained by the Insurer began to broach with Mrs. Perkovic the subject of her return to work. Some discussions with Mr. and Mrs. Perkovic took place regarding a possible employment opportunity as a foster parent. The fallout from this discussion resulted in the Perkovics insisting that the Insurer change her case manager, and the Perkovic family withdrew from the care of Dr. Seidl. The relationship between the Insurer and Mrs. Perkovic also deteriorated. From this time forward, Mrs. Perkovic approached the efforts of the Insurer to further her vocational rehabilitation with confrontation and mistrust.

Beginning in August 1993, Mrs. Perkovic saw Dr. Marko Mihic, who referred her to various other physicians, in an effort to address her complaints of pain, depression and anxiety. Since January 1994, Mrs. Perkovic has also been under the care of Dr. Ema Jakovac, a psychiatrist. In a report dated June 1, 1998, Dr. Jakovac concludes that Mrs. Perkovic is suffering from post-traumatic stress syndrome with marked depression, low stress tolerance and anxiety related to the accident.

Dr. Jakovac notes that Mrs. Perkovic also suffers from chronic neck pain and pain in her arm and that her treatments include cognitive-supportive psychotherapy and anti-depressant medications. Dr. Jakovac concludes that Mrs. Perkovic is "quite incapacitated by her symptoms and is not capable of doing more than she is doing now." She adds that Mrs. Perkovic "is not capable of doing any remunerative work."

In November 1993, Dr. Mihic also referred Mrs. Perkovic to Dr. A. Birnbaum, a neurologist, to address her complaints of "jabbing pains all over the body" and numbness in her hands. Dr. Birnbaum had treated Mrs. Perkovic when she was an in-patient at the St. Joseph's Health Centre and again in November 1992 as an out-patient. He could find no objective reason for Mrs. Perkovic's complaints. He noted that Mrs. Perkovic reported having headaches every few days for the past 10 years, though she later reported that her headaches occurred only once a month prior to the accident. Dr. Birnbaum also stated that "Assessment is somewhat difficult since she is extremely vague and imprecise." He prescribed Nortriptyline for her headaches which he described as "common migraine and tension headache."

On October 24 and 28, 1994, Mrs. Perkovic was evaluated at the request of the Insurer by Dr. John McLachlan, a psychologist. In his report dated November 7, 1994, Dr. McLachlan found that Mrs. Perkovic demonstrated weakness and a lack of dexterity in her right hand and a number of post-traumatic symptoms such as motor vehicle anxiety, pessimism, sadness, depression and sleep disorders. He concluded that Mrs. Perkovic "suffers from a Major Depressive Disorder." Dr. McLachlan could not find a psychological basis for Mrs. Perkovic's complaints of dizziness and headaches.

In a letter dated March 14, 1995, written in support of a claim for Canada Pension Plan benefits on behalf of Mrs. Perkovic, Dr. Mihic set out his diagnosis that "Mrs. Perkovic is suffering from [a] chronic, disabling condition which causes [sic] her unable to perform any kind of work." In a second letter dated April 1, 1997 addressed to her solicitors, Dr. Mihic described Mrs. Perkovic's situation as follows:

It is, therefore, confirmed that this lady sustained physical, psychological and mental injury as a result of the accident.

I believe that the symptoms of the accident are preventing her from being able to be engaged in any kind of physical work.

Mrs. Perkovic is unable to concentrate, she has difficulty [r]emembering and as per Dr. Ema Jakovac, she is quite incapacitated due to her symptoms.

Evidence of Vocational Abilities Post-Accident:

In August 1993, Mrs. Perkovic underwent a Vocational Evaluation and a Physical Demands Evaluation at the Canadian Centre for Occupational Injury Reduction, designed to determine whether her recovery had reached the point where she might return to work and if so, the type of work which she might be able to perform. The evaluation revealed that Mrs. Perkovic had the necessary physical ability to perform light manual work, though her ability to find a suitable job was limited by her complaints of pain, language barriers, her age, lack of motivation, vision problems and her weakness in academic-related activities. The evaluators concluded that:

Although Mrs. Perkovic may have employment aptitudes and transferrable skills that would indicate that she is employable, there are numerous restrictions that would significantly influence her ability to obtain and maintain work. Should Mrs. Perkovic be able to overcome some of these barriers, the manual related occupations listed on the following page may be considered.

Between June 6 and June 17, 1994, Mrs. Perkovic participated in a ten-day programme of vocational evaluation at Vocational Pathways Inc., at the request of the Insurer. The report which followed, dated July 11, 1994 presents a detailed and, in my view, accurate description of Mrs. Perkovic's vocational abilities at that time. She is described as being very pain-focused and quite distraught by her present circumstances. The report also finds that Mrs. Perkovic is:

. . . not competitively employable at this time. She was unable to demonstrate attitudes and work behaviours which are compatible with the demands of the competitive workplace. Her current level of functioning, her significant focus on her pain together with her forgetfulness and frequent headaches and migraines present barriers to the re-employment process.

Overall evaluation results describe Mrs. Perkovic as a pain focused individual who considers herself totally disabled at the present time. Mrs. Perkovic is not well suited to occupations requiring front line work in the service industry given her weak skills in this area and the anticipated length of time it would take for her to learn and develop skills in this area. She is best suited to practical work activity and not strongly suited to work in which she would be required to work quickly and where she would have to meet established standards of productivity.

At the request of the Insurer, a further Vocational Evaluation Report dated April 18, 1997 was prepared by Career Probe Inc. following their identification of suitable employment alternatives, between April 1 to 4, 1997. The evaluators found that Mrs. Perkovic was capable of performing sedentary to light work, based on her demonstrated aptitudes for working and her self-rated estimate of physical tolerance. Mrs. Perkovic advised the evaluators that she was interested in pursuing several occupations including that of a sewing machine operator, a job which she had held in 1978 and 1979.

A further Vocational Assessment was performed by Willis Health Services Inc. on behalf of the Applicant in May 1998. In the section of the report entitled "Vocational Prospects and Opinion," the evaluator opines that:

Mrs. Perkovic is no longer capable of maintaining her own schedule, maintaining composure and/or thinking on her feet. She also has limited people skills and problem solving strategies. These limitations combined with chronic pain and fatigue issues grossly limit this client's likelihood that she could be successfully placed in a job, or maintain herself independently in an employment situation.

In her testimony at the hearing, Mrs. Perkovic was adamant that she was "too sick" to perform any paid work. Both she and Mr. Perkovic indicated that she was unable to do "anything" and that she should be considered to be unemployable as "no one would hire someone like her."

FINDINGS:

Mrs. Perkovic's Motivation to Return to Work:

Mrs. Perkovic is claiming entitlement to weekly income benefits pursuant to section 12(5)(b) of the Schedule from December 4, 1994 and ongoing on the basis that, as a result of the injuries which she sustained in the December 4, 1991 accident, she is continuously prevented from engaging in any occupation or employment for which she is reasonably suited by her education, training and experience. In its defence of the claim, Allianz raised the question of Mrs. Perkovic's motivation to return to work, particularly in light of her unreliable reporting of events and what it describes as inconsistencies in her complaints of injuries related to the accident.

The Insurer also cautions that all of the evidence of disability is self-reported and that the medical evidence indicates that her physical symptoms had diminished by the time benefits were terminated in December 1994. Finally, the Insurer suggests that Mrs. Perkovic's reluctance to attempt to return to any kind of work is motivated by her desire to continue to receive benefits and, thereby, derive some income to assist in the support of her family and the maintenance of their home.

The Insurer relies heavily on the notes taken by Dr. Seidl at the time of Mrs. Perkovic's last visits to his office on July 19 and August 31, 1993. These notes indicate that Dr. Seidl had concluded that it was time for Mrs. Perkovic to rehabilitate herself and return to some kind of remunerative work. It is also clear from the notes that Mrs. Perkovic strongly resisted this suggestion and threatened to leave Dr. Seidl's care and find another doctor, a threat which she ultimately followed through on. I find that Mrs. Perkovic's answers on cross-examination with respect to her response to Dr. Seidl's recommendations were indeed evasive, self-serving and not credible. I accept the Insurer's version of these events, as reflected in Dr. Seidl's clinical notes. Given his long history of treating Mrs. Perkovic and her family and his disinterested position, I find that the events described therein demonstrated that in August 1993, Mrs. Perkovic felt strongly that she was not yet ready to consider any rehabilitation measures which might prepare her to return to work. This attitude continues to the date of the hearing.

Despite her evidence of a fair measure of activity each day, Mrs. Perkovic continues to maintain that she is unable to rehabilitate herself and prepare to return to work. Rather, with the help of her family, I find that she has fallen into the routine and assumed the role of an individual who is much more seriously disabled than she is. Taken as a whole, I have serious misgivings about much of Mrs. Perkovic's evidence concerning her motivation to rehabilitate herself and return to the job market, when this was raised with her in August 1993, and up to the present time.

ENTITLEMENT:

Mrs. Perkovic received weekly income benefits under section 12(1) of the Schedule for three years following the accident as the Insurer agreed that she suffered a substantial inability to perform the essential tasks of her employment. At the three-year mark, the Insurer was obliged to re-evaluate Mrs. Perkovic's situation in light of the change to the test for entitlement which begins at that point in time. Under section 12(5)(b), weekly benefits are paid only if Mrs. Perkovic establishes that the injury continuously prevents her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience. In Wigle and Royal Insurance Company of Canada (OIC P96-000025, April 9, 1998), Director's Delegate Naylor made the following comments with respect to the standard and onus of proof in cases involving this subsection. She held that:

Whether or not an injury renders a person unable to engage in any occupation or employment for which he or she is reasonably suited is a question of fact. Each case turns on its own facts, depending on the claimant's residual capacities, and educational and employment backgrounds.

The onus of proving disability within the terms of paragraph 12(5)(b) rests on the applicant.

Mrs. Perkovic submits that because of her chronic pain, she is continuously prevented from engaging in any occupation or employment whatsoever. In response to her counsel's questions regarding her suitability for work as a sewing machine operator, food court attendant or kitchen worker, Mrs. Perkovic responded by saying that she could not do these jobs because of her neck and arm pain and her fears. Mrs. Perkovic conceded that since the accident in December 1991, she has not made any efforts whatsoever to return to work. She views herself as being completely disabled and unemployable. This is contrary to the views expressed by Dr. Seidl and the vocational evaluators retained by the Insurer in 1997, who recommended that Mrs. Perkovic make some efforts towards rehabilitation and an eventual return to work. However, Mrs. Perkovic's perception of her disabilities is consistent with that of her treating physicians and with her own reports to various other health care providers since the time of the accident.

In a report dated June 1, 1998, Dr. Jakovac found that Mrs. Perkovic suffers from "post-traumatic stress disorder with marked depression and anxiety related to the accident." Dr. Jakovac also noted that Mrs. Perkovic suffers chronic pain in her neck and right arm. Mrs. Perkovic remains in the care of Dr. Jakovac, receiving regular cognitive-supportive psychotherapy and anti-depressive medications. Dr. Jakovac further noted that because Mrs. Perkovic's stress tolerance is low, she is "quite incapacitated by her symptoms and is not capable of doing more than she is doing now." Dr. Jakovac concluded that Mrs. Perkovic is "incapable of doing any remunerative work." Based on the opinions of her treating psychiatrist and family doctor, I find that the barriers to Mrs. Perkovic's return to work are primarily psychological.

I note that the Vocational Evaluation Report dated July 11, 1994 prepared by Vocational Pathways Inc. for the Insurer following its assessment of Mrs. Perkovic recommended that additional neuro-psychological investigation into her complaints of dizziness, disorientation, loss of balance and frequent migraines be made. This report also suggested that Mrs. Perkovic be provided with "supportive counselling to help her deal with and be prepared for the realities of a new employment opportunity." Beyond conducting the Vocational Evaluation referred to above in 1997, I have not been provided with any evidence to indicate whether the Insurer acted on these recommendations or made any other efforts to assist in Mrs. Perkovic's return to the workforce. Clearly, the Insurer's own evaluators identified certain physical and psychological barriers to Mrs. Perkovic's return to work, yet the Insurer did little to assist her in overcoming them.

Mrs. Perkovic was also referred by the Insurer to Dr. John McLachlan for a psychological assessment in October 1994. He concluded that Mrs. Perkovic suffers from a "Major Depressive Disorder" and that "her depression, pain and sleep difficulties contribute to her problems with concentration and distractibility." However, I have not been provided with any evidence to indicate that the Insurer took any further steps to assist Mrs. Perkovic in addressing the psychological barriers which prevented her from returning to work.

In my view, Mrs. Perkovic has provided sufficient objective medical evidence to demonstrate that since December 1994, her physical and psychological limitations have continuously prevented her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience. The reports of Drs. McLachlan, Mihic and Jakovac specifically identify the basis for her condition as a combination of post-traumatic stress disorder, depression and anxiety, together with chronic neck and right arm pain.

Accordingly, I find that as a result of the injuries which Mrs. Perkovic suffered in the motor vehicle accident of December 4, 1991, she remains continuously prevented from engaging in the types of occupations or employment which were identified in the Vocational Evaluation Reports tendered in evidence by the Insurer. Because of her physical and psychological limitations, I find that these, or any other positions are not suitable for Mrs. Perkovic, having regard to her education, training and experience. Although I am concerned about Mrs. Perkovic's lack of motivation to return to work which she exhibited in August 1993, I am persuaded that as a result of the accident, Mrs. Perkovic remains unable to work. She is, accordingly, entitled to benefits under section 12(5)(b) of the Schedule from December 4, 1994 and ongoing.

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.

August 23, 1999

Donald Hale Arbitrator

ARBITRATION ORDER

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

1. Mrs. Perkovic is entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule from December 4, 1994, and ongoing.
2. Mrs. Perkovic is entitled to interest on any amounts owing.
3. The issue of expenses may now be spoken to.

August 23, 1999

Donald Hale Arbitrator

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.