Josie Distefano v. Liberty Mutual Insurance Company, 1999 ONFSCDRS 170

Financial Services Commission of Ontario

Neutral Citation: 1999 ONFSCDRS 170 FSCO A97-001808

Between:

Josie Distefano Applicant

and

Liberty Mutual Insurance Company Insurer

Reasons for Decision

Before: David Muir

Heard: May 31, June 1, and June 2, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: David F. Longley for Mrs. Distefano Michael J. Huclack for Liberty Mutual Insurance Company

Issues:

The Applicant, Josie Distefano, was injured in a motor vehicle accident on September 3, 1993. She applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ Liberty Mutual terminated weekly income benefits on October 9, 1996.

The parties were unable to resolve their disputes through mediation, and Mrs. Distefano applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The quantum of benefits that are payable to Mrs. Distefano in the event that she is entitled to them is not in dispute.

The issues in this hearing are:

1. Is Mrs. Distefano entitled to receive weekly income benefits in the amount of $233.45 from October 10, 1996 onwards pursuant to section 12(5)(b) of the Schedule?

2. Is Mrs. Distefano entitled to interest pursuant to section 24(4) of the Schedule on any amounts owing to her?

3. Is Liberty Mutual liable to pay Mrs. Distefano's expenses in respect of this arbitration under section 282(11) of the Insurance Act, R.S.O. 1990. C. I.8?

4. Is Mrs. Distefano liable to pay Liberty Mutual's expenses in respect of this arbitration under section 282(11) of the Insurance Act, R.S.O. 1990. C. I.8?

Result:

1. Mrs. Distefano is entitled to receive weekly income benefits in the amount of $233.45 from October 10, 1996 onwards pursuant to section 12(5)(b) of the Schedule.

2. Mrs. Distefano is entitled, pursuant to section 24(4) of the Schedule, to interest on the amounts owing.

3. The parties may speak to the issue of expenses now if unable to resolve it themselves.

Background:

Mrs. Distefano was a 45 year old mother of three at the time of the accident. She worked three days a week at the Shouldice Hospital as a central supply technician. She has not returned to work since the accident. Liberty paid weekly income benefits pursuant to section 12(1) of the Schedule until October 9, 1996, a period of slightly more than 156 weeks. It apparently terminated benefits, in part, on the basis of an insurer's medical examination that reported no objective findings which would support a finding of disability in respect of the "activities of a housewife" or which prevented "a progressive return to her pre-1993 motor vehicle accident work activities."² Liberty Mutual claims that Mrs. Distefano has exaggerated her symptoms and her claims to disability should not be accepted. Alternatively, Liberty argues that Mrs. Distefano is responsible for her current disability because she refused treatment that would return her to the workforce. Finally, Liberty has identified work that it submits Mrs. Distefano is capable of doing.

Mrs. Distefano claims that her depression, fatigue, inability to concentrate, inability to sit or stand for prolonged periods of time, forgetfulness, headaches and pain in her neck prevent her from returning to the workforce.

The motor vehicle accident occurred while Mrs. Distefano was driving her youngest daughter, Adriana, who was thirteen at the time, and a young niece to another relative's home for a family get together. Mrs. Distefano and her young passengers, all seatbelted, were travelling southbound on McCowan Road south of Highway 7 in the late afternoon. Mrs. Distefano's vehicle was struck from behind by a truck, spun around by the impact and came to rest in a collision with a bridge abutment or guard rail. It cost in excess of $6,000 to repair the damage to the vehicle. The car had to be towed from the accident scene.

The Statutory Test:

The test for continued entitlement to weekly income benefits beyond 156 weeks is set out in section 12(5)(b) of the Schedule:

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

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.

What injuries and disabilities has Mrs. Distefano suffered?

The parties addressed Mrs. Distefano's disabilities in terms of her household activities both before and after the accident.

Prior to the accident Mrs. Distefano had worked outside of the home for several years. In addition to her outside employment, Mrs. Distefano had always been the primary homemaker and caregiver for her three children, all of whom were living at home at the time of the accident. She devoted a good deal of energy to cooking and in addition to providing daily meals for the family, baked and made all of her own sauces and olives. She did all of the housekeeping, including the heavy cleaning such as window cleaning and floor washing. Mrs. Distefano did the food shopping for the family each week. In addition she was a competent seamstress who made clothing for her own children and other family members. She was an avid gardener and led an active social life. Mrs. Distefano was a good dancer and she and her husband would often go out dancing together.

When the vehicle came to rest after the collision Mrs. Distefano described herself as being in a daze but does not recall losing consciousness. The material filed indicates that she felt symptoms quite soon after the collision, while at the accident scene. Neither Mrs. Distefano nor her daughter were seen by a medical practitioner on the day of the accident.

Upon waking the morning following the accident, Mrs. Distefano testified that she was in considerable pain which she felt "everywhere." At that point she could not move her head and had difficulty getting out of bed.

Mrs. Distefano saw her family physician, Dr. Walter Chrystoja, the first business day following the accident. The documents filed indicate that Dr. Chrystoja saw Mrs. Distefano on more than one occasion between September 3 and September 18 when he provided an Ontario Automobile Insurance Medical or Psychological Report. At that time the doctor reported that Mrs. Distefano's initial complaints were of pain in her neck and shoulders and back, headaches, and trouble sleeping. He also noted objective findings of decreased range of movement in her neck and back; tenderness of the neck on palpitation, especially on the right side; tenderness in the trapezius region and diffuse tenderness over the whole back. At that time his diagnosis was myofascial strain to her neck/back and right shoulder.³ According to Mrs. Distefano, Dr. Chrystoja prescribed painkillers and a cervical collar. She was also referred for physiotherapy.

Mrs. Distefano testified that after the motor vehicle accident her life was dramatically altered as she was unable to do most of the things that she had done prior to the accident. Even those simple tasks she was able to do took her much longer to accomplish. She testified that since the accident and to this day she cannot do any serious cooking. She provides prepared as opposed to "fresh food" for the family now. Adriana and Anthony, her daughter and son, have taken over much of the simple food preparation tasks. Mrs. Distefano no longer bakes or makes sauces or olives. Much of the routine and light housework is undertaken by other family members although Mrs. Distefano indicated that she was able to do some of the laundry. She is able to make beds, albeit with difficulty. She is also able to load the dishwasher. She remains unable to vacuum or wash the floors and windows. A cleaning person comes in once a week to do the vacuuming and heavier cleaning tasks. Mrs. Distefano is no longer able to do any significant gardening and no longer sews. She testified that her social life has been reduced significantly as she often feels unable to go out with others due to headaches and fatigue. Mrs. Distefano testified that she can no longer dance.

In addition to these physical limitations Mrs. Distefano testified that she often has difficulties with her memory and will forget, for example, what it was that she was looking for when she has opened the fridge door. She testified as well that she could not remember what she said in evidence in the hearing from one day to the next. She testified that she had difficulty concentrating and often had problems following conversations. She testified that she could no longer read for pleasure as she would not remember at the end of a page what she had just read. These complaints are documented throughout the material tendered in evidence.⁴

Mrs. Distefano called a number of witnesses to give evidence of their observations of her both before and after the accident.

Heather Cujno married Mrs. Distefano's brother in 1971 and has been very close to the Applicant since that time. She said that her sister-in-law has had memory problems, an inability to focus and an inability to organize things since the accident. Mrs. Cujno testified that on occasion she has washed Mrs. Distefano's hair while in the shower because Mrs. Distefano complained of pain when working with her hands above her head. Mrs. Cujno took this as a sign of significant difficulty because Mrs. Distefano would only expose herself in that way if it was absolutely necessary.

Mrs. Josei Lombardo, Mrs. Distefano's cousin, testified that since the accident Mrs. Distefano has called upon her for assistance on many occasions. She testified that Mrs. Distefano's situation is very unpredictable as sometimes she can function to a certain level and at other times she cannot even walk. She testified that Mrs. Distefano typically moves very slowly and walks in a forced and uncomfortable way. She cannot sit or stand in any one position for very long. She also has exhibited a pain reaction to an inadvertent light touch on more than one occasion.

Mrs. Cora Panicca, the Applicant's younger sister, confirmed the other witnesses' view that the accident caused a dramatic change in her sister. Mrs. Panicca found some improvement at the beginning but deterioration in the last few years. Mrs. Panicca testified that Mrs. Distefano was incapable of working outside of the home.

Adriana, Mrs. Distefano's daughter, described her mother as a different person after the accident. Before the accident her mother did everything and the rest of the family did nothing, according to Adriana. Now Mrs. Distefano requires assistance from a family member for even the small things that she attempts.

Mrs. Distefano saw a number of medical practitioners after the motor vehicle accident. Dr. Chrystoja referred her to Dr. Gordon D. Ko, a physiatrist, in early 1994. In March 1994, Dr. Ko diagnosed Mrs. Distefano as suffering from fibromyalgia syndrome and facet joint injury secondary to the automobile accident.⁵ In his report dated May 19, 1999,⁶ Dr. Ko provided the following diagnosis of Mrs. Distefano:

1. Chronic pain syndrome with widespread fibromyalgia [sic] tender points.

2. Mechanical neck and low back pain. Underlying early signs of mild degenerative disc disease.

3. Possible cervical facet joint trauma and cervicogenic headache.

4. Post-traumatic stress symptoms for which she was receiving psychotherapy.

5. Perpetuating factors for chronic pain including poor sleep hygiene, inadequate exercise, poor nutrition.

Dr. Ko was unsure about Mrs. Distefano's likelihood for recovery. He expressed no definitive conclusions about her functional capacities, suggesting that would be best determined by a functional capacity evaluation.

In April 1994 Dr. Lawson, a chiropractor, diagnosed Mrs. Distefano's injuries as including post traumatic myofascial pain syndrome with possible diagnosis of fibromyalgia syndrome; biomechanical lesions of the spine; cervogenic headaches; cervical and lumbar spine strain.⁷ The diagnosis of fibromyalgia was later supported by another practitioner, Dr. Rusty Goodman, although there is little documentation of the circumstances of that diagnosis.⁸

Dr. Sigesmund, a dentist, diagnosed internal derangements of the right and left temperomandibular joints accompanied by facial and cervical myalgias⁹ caused by the car accident.

Dr. Bob Gottfried, a psychologist, concluded that Mrs. Distefano exhibited signs of chronic pain syndrome and post-traumatic stress.¹⁰ In a report dated May 15, 1999¹¹ Dr.Gottfried described her symptoms as including persistent pain in neck, shoulders, arms and legs. These pains are reported to be "everywhere" and "travelling" to different locations from time to time." Dr. Gottfreid also reported Mrs. Distefano's complaints of sleep disturbance; shaking episodes involving her arms, chest and sometimes her whole body; dizzy spells, nausea, ongoing depression and anxiety; cognitive difficulties; headaches; diminished social life and sexual activity; high levels of stress.

Dr. Brian Ticcol, a psychiatrist, initially diagnosed Mrs. Distefano as suffering from a chronic pain disorder and a recurrent major depressive episode. In the spring of 1998 Dr. Ticcol admitted Mrs. Distefano to hospital for depression. In a report dated May 26, 1999 Dr. Ticcol reiterated his view that Mrs. Distefano suffered from chronic pain syndrome and depression. He ascribed these symptoms to the car accident and its aftermath.¹²

Mrs. Distefano was assessed by medical practitioners selected by Liberty Mutual.

Dr. George Rado, a physiatrist, conducted two assessments of Mrs. Distefano, once in June 1996 and again in September 1998. Dr. Rado concluded that Mrs. Distefano was not disabled from returning to her pre-accident work. In his first assessment Dr. Rado found that Mrs. Distefano was suffering some diffuse myofascial discomfort but questioned the diagnosis of fibromyalgia. Dr. Rado concluded that there were no objective findings which would support a finding of disability in respect of the "activities of a housewife" or preventing "a progressive return to her pre-1993 motor vehicle accident work activities."¹³

Dr. Rado undertook a second assessment of Mrs. Distefano in September 1998. Dr. Rado's view of Mrs. Distefano's physical impairments was unchanged from his earlier assessment. However, he now felt that whatever impairments Mrs. Distefano had were emotional or psychological:

There appears to be a significant emotional component. This is evident from the documentation as well. This is currently under treatment, and has been for a long period of time. Whether modification or additions to this treatment are advisable, and whether or not she has significant impairments in this area leading to a functional disability, is best addressed by a specialist in this field, such as a psychologist or psychiatrist.

It is this examiner's opinion that the emotional component is significant, and likely is responsible for a significant portion of this lady's symptoms and functional limitations as opposed to any residual injury related to the 1993 motor vehicle accident. It is also considered likely, that without improvement in this component, it is unlikely that there will be any meaningful positive change in functional status.¹⁴

Mrs. Distefano also attended at a psychiatric examination with Dr. S. Shapiro on September 1, 1998, at the request of Liberty Mutual. Dr. Shapiro's opinion is limited. He concluded that the motor vehicle accident was not "a direct cause for any specific Psychiatric Disorder" (emphasis in original). Dr. Shapiro went on to state that it was difficult to develop a "nuanced" [sic] picture of the patient given the nature of an insurer's medical examination. However, he also concluded that Mrs. Distefano's difficulties were a result of factors in her life other than the accident.¹⁵

These two medical reports relied upon by Liberty Mutual are not helpful. Dr. Rado concludes that Mrs. Distefano's problems are psychological. Dr. Shapiro offers the limited opinion that he can find no specific psychiatric disorder that this is directly attributable to the accident. This does not amount to an opinion that Mrs. Distefano is not disabled as a result of the accident. Dr. Shapiro's secondary view that Mrs. Distefano's current problems flow from other issues in her life is without foundation in the evidence before me and I have given it little weight in my determinations.

Liberty Mutual conducted surveillance of Mrs. Distefano. A report of the investigator and a video tape were tendered in evidence. The surveillance evidence shows Mrs. Distefano on one occasion driving an automobile a short distance, pumping gas and paying for it at a gas bar. In another instance Mrs. Distefano is observed standing and walking at the front of her house smoking a cigarette and conversing with two individuals. During the course of this latter episode she is seen to repeatedly run her hands through her hair.

Liberty Mutual submits that Mrs. Distefano does not meet the statutory test — she is not disabled and in any event is not disabled to the extent that she cannot perform the duties of any occupation. At the core of its argument at the hearing was the submission that Mrs. Distefano was exaggerating her difficulties and was not credible in her assertions of disability.

I accept that the outcome of this matter turns on the extent to which Mrs. Distefano's claim to be disabled can be accepted. While there are some difficulties with her evidence, I do not accept Liberty Mutual's submission that I should not believe Mrs. Distefano. The alleged contradictions in her evidence relied upon by Liberty Mutual are relatively trivial considered individually and even taken together do not support the conclusion that Mrs. Distefano has fabricated her claims of disability.

One of the alleged contradictions Liberty Mutual relied upon was the fact that the video surveillance indicates that Mrs. Distefano is able to lift her hands above her shoulder to her head. Liberty Mutual submitted that this contradicts the evidence that Mrs. Distefano is unable to wash her hair because of an inability to hold her hands above her head. While the video surveillance does clearly show Mrs. Distefano repeatedly running her hands through her hair, she does not claim either to be unable to wash her own hair or lift her hands above her head. The evidence of her sister-in- law, Heather Cujno, was not that she regularly washed Mrs. Distefano's hair, but that she had done it on occasion when asked. The point of her evidence was that this request indicated to Mrs. Cujno that Mrs. Distefano experienced significant pain, and not that she could not raise her hands above her head.

Despite this conclusion I have treated Mrs. Distefano's testimony with caution because her memory of past events is poor. That concern does not apply with respect to her testimony regarding her current state of health and functional ability. Her ability to recall events from the past is not at issue when describing her current abilities and there is significant independent corroboration of her evidence on those issues.

I also accept the evidence of those called on behalf of Mrs. Distefano which confirmed Mrs. Distefano's testimony respecting her ability to function. These witnesses confirmed that prior to the accident Mrs. Distefano was a lively, competent woman able to care for her family, work outside the home and participate in various social and recreational activities. Subsequent to the accident, there was a marked change in her personality and her level of activity.

The medical opinions relied on by Mrs. Distefano, taken as a whole, also support her claims of disability in a substantial way. As I have concluded above, the medical opinions relied upon by Liberty Mutual are not helpful in resolving this dispute.

The evidence taken as a whole establishes that Mrs. Distefano is currently suffering serious and substantial impairments in her ability to function. I find therefore that Mrs. Distefano currently suffers from depression, fatigue, an inability to concentrate, an inability to sit or stand for prolonged periods of time, forgetfulness, headaches and pain in her neck.

Causation:

Liberty Mutual submitted that Mrs. Distefano is responsible for her current disabilities because she refused treatment that was intended to return her to the workforce.

I have reviewed the material relied upon by Liberty Mutual in support of this position. Mrs. Distefano did concede that she was on occasion not as cooperative as she might have been. However, the evidence also establishes that she did make an effort.¹⁶ Mrs. Distefano's treatment regime was extensive, beginning with the first referral by Dr. Chrystoja to a course of physiotherapy in September 1993. Her treatments included courses of hydrotherapy, chiropractic, physiotherapy, psychotherapy, counselling, biofeedback, acupuncture, massage, and analgesic injections at trigger points. I note the view of Susan Track who reported to Crawford & Company that in September 1994 Mrs. Distefano appeared overwhelmed by the amount of therapy she was involved in.¹⁷

There is no medical evidence to support the proposition that Mrs. Distefano's current disabilities are in any way related to her failure to participate in any treatment program. I find that the impairments described by Mrs. Distefano were caused by and flow from the motor vehicle accident which occurred on September 3, 1993.

Education, Training and Experience:

There was little dispute about Mrs. Distefano's vocational abilities and her background is fairly described as limited.

Mrs. Distefano was born in Italy and came to Canada in 1963 when she was 14 years old. She had completed her schooling in Italy. She has had no further formal education other than English language classes when she first arrived in Canada. Mrs. Distefano is unable to write English although she can read it and can communicate effectively in oral English.

Within weeks of arriving in Canada, Mrs. Distefano began her first job as a sewing machine operator. She continued in that occupation until her first child, Rosanna, was born in 1971. Mrs. Distefano returned to the workforce in 1974 when she began working at the Wellesley Hospital as a lab assistant. Mrs. Distefano worked at the Wellesley Hospital, with a short break in 1977 for the birth of her son, Anthony, and again in 1980 for the birth of a second daughter, Adriana.

From 1980 until 1989 Mrs. Distefano worked in the home raising her young family. She began a job as a receptionist but that was cut short after two days by a motor vehicle accident which occurred in the mid 1980s. Mrs. Distefano also briefly held a part-time job as a sales clerk in a clothing store. In 1989 Mrs. Distefano began her part-time job at the Shouldice Hospital. She worked there until the car accident in 1993.

I find that the positions identified by Liberty Mutual:¹⁸ receptionist, retail sales clerk, parking lot or gas bar attendant are jobs for which Mrs. Distefano is reasonably suited because of her education training and experience.

Is Mrs. Distefano continuously prevented from engaging in these occupations?

Liberty Mutual submitted that because Mrs. Distefano could shop and could buy gasoline for her vehicle, including filling the tank herself, she ought to be able to work as a sales clerk or a gas bar attendant. I disagree. The fact that Mrs. Distefano could do these things is not evidence of her ability to perform, on a sustained basis, the duties of the jobs identified by Liberty Mutual.

Both Dr. Ticcol and Dr. Gottfried are of the view that Mrs. Distefano is disabled from performing work as a consequence of her physical, emotional and psychological difficulties. While Dr. Ko does not say that Mrs. Distefano is disabled from working, his report provides general support for her evidence of disability.

Based upon the evidence of Mrs. Distefano and her family members as well as the preponderance of the medical evidence, I conclude that Mrs. Distefano cannot presently perform the duties of the positions identified by Liberty Mutual or the duties of any occupation for which she is reasonably suited by her education, training and experience, because of her depression, fatigue, inability to concentrate, inability to sit or stand for prolonged periods of time, forgetfulness, headaches and pain in her neck.

EXPENSES:

The issue of expenses was not dealt with at the hearing. The parties may speak to the issue in the event that they are unable to resolve it themselves.

September 13, 1999

David Muir Arbitrator

Date

Arbitration Order

Neutral Citation: 1999 ONFSCDRS 170 FSCO A97-001808

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

Josie Distefano Applicant

and

Liberty Mutual Insurance Company Insurer

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

1. Mrs. Distefano is entitled to receive weekly income benefits from Liberty Mutual pursuant to section 12(5)(b) in the amount of $233.45 from October 10, 1996 and continuing for such period during which she is continuously prevented from engaging in any employment for which she is reasonably suited by education, training or experience.

2. Mrs. Distefano is entitled to receive from Liberty Mutual interest on overdue payments calculated in accordance with section 24(4) of the Schedule.

September 13, 1999

David Muir 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. 2Exhibit #1, Tab 12B, Report of Dr. George Rado dated August 27, 1996.
3. 3Ontario Automobile Insurance Medical or Psychological Report, 18/9/93, Exhibit 1, Tab 1A ; letter from Lisa Sciberras, R.N. to Dr. Chrystoja, March 11, 1994, Exhibit 1 Tab 3B.
4. 4See for example Exhibit # 1, Tab 3Q, letter to Dr. Gottfried dated November 16, 1994
5. 5Exhibit #1, Tab 3G, letter to Dr. Ko dated June 9, 1994.
6. 6Exhibit #2.
7. 7Exhibit #1, Tab 3M, letter to Dr. Lawson dated July 15, 1994
8. 8Exhibit #4, report of Dr. Brian Ticcol, May 26, 1999.
9. 9Exhibit # 1, Tab 3T, letter to Dr. Sigesmund dated January 25, 1995.
10. 10Exhibit # 1, Tab 3K, letter to Dr. B. Gottfried dated June 30, 1994.
11. 11Exhibit #3.
12. 12Exhibit #4.
13. 13Exhibit # 1, Tab 12B.
14. 14Exhibit # 1, Tab 12C.
15. 15Exhibit # 1, Tab 14, report of Dr. S. Shapiro, dated September 28, 1998.
16. 16See for example the following comments about Mrs. Distefano's motivation: Exhibit # 1, Tab 6A, Tab 7A, Tab 8A.
17. 17Exhibit # 1, Tab 3O, see as well Tab 3N where Crawford & Company expressed concern to Dr. Ko regarding Mrs. Distefano's expressions "of fatigue and frustration from travelling to various health care providers on an almost daily basis to receive overlapping treatment from the chiropractor, massage therapist and physiotherapist."
18. 18Exhibit #1, Tab 18A, Report of Adams Webber Pett Inc., dated April 9, 1999.