Neutral Citation: 1999 ONFSCDRS 180

FSCO A98-001486

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

D.W.

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

July 5, 6, 7 and 8, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Louis Mostyn for D.W.

William A. McClelland for Dominion of Canada General Insurance Company

Issues:

The Applicant, D.W. (Ms. W), was involved in a motor vehicle accident on January 21, 1998. She applied for and received income replacement benefits (IRBs) from Dominion of Canada General Insurance Company (Dominion), payable under the Schedule.¹ Dominion terminated IRBs on July 29, 1998. The parties were unable to resolve their disputes through mediation, and Ms. W 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. Duration of benefits: is Ms. W entitled to receive IRBs for the period July 30, 1998 to May 23, 1999?

2. Quantum of benefits: does the calculation of Ms. W's IRBs include her 1997 reported income from a photography business?

Result:

1. Duration of benefits: Ms. W is entitled to IRBs for the period July 30, 1998 to May 23, 1999.

2. Quantum of benefits: the calculation of Ms. W's IRBs does not include her 1997 reported income from a photography business.

INTRODUCTION:

On January 21, 1998, Ms. W was a passenger in a stopped Lincoln Continental when it was hit from behind by a Chevrolet pickup. The collision caused no visible damage to the Lincoln and no immediate pain to Ms. W, apart from a bit tongue and facial numbness. She did not attend at a hospital and worked her normal shift as a bus driver the next two days. On January 23, 1998, Ms. W went to see her family doctor whose Disability Certificate diagnosed a Grade III Whiplash-Associated Disorder (WAD) consisting of soft tissue injuries to the neck, left shoulder and lower back with associated headaches and anxiety. Since then, Ms. W's ongoing symptoms have been assessed by a variety of medical specialists as described below.

Ms. W alleges that, in addition to her job as a bus driver, she engaged in two other kinds of pre-accident employment: as a special needs rehabilitation specialist helping developmentally handicapped children and as the sole proprietor of a photography business. She further alleges that her injuries prevented her from performing the essential tasks of all three forms of employment. She limits her claim for IRBs to the period ending May 23, 1999 when she returned to work as a security guard.

Dominion alleges that Ms. W only engaged in two kinds of eligible pre-accident employment, as a bus driver and a special needs rehabilitation specialist, and that it correctly calculated the quantum of her IRBs without regard to her 1997 reported income from the photography business. It denies that her injuries prevented her from engaging in any of these kinds of employment after July 29, 1998.

DURATION OF IRBs:

The relevant eligibility criteria for IRBs are set out in Part II, sections 4.1 and 5(1) of the Schedule. In order to be entitled to IRBs for the period July 30, 1998 to May 23, 1999, Ms. W must prove, on the balance of probabilities, that she sustained "an impairment as a result of [the] accident" and that this impairment constituted "a substantial inability to perform the essential tasks" of the employment in which she was engaged at the time of the accident.

I determine first the essential tasks of Ms. W's employment as a bus driver at Penetang Midland Coach Lines Limited and as a special needs rehabilitation specialist at Erinoak. These are the jobs Dominion recognized as eligible pre-accident employment and it, therefore, requested an occupational therapist, S. Paulette Langdon, to conduct a job site analysis for each.²

Ms. Langdon found that the bus driver job required "multiple limb coordination" and the "handling of loads of 5 kg but less than 10kg." She, therefore, classified this job as light work. However, she seems to have done so on the understanding that "someone at the bus parking lot could be asked to open and close the hood" of the bus if Ms. W needed help, an understanding confirmed through the testimony of David McKee, Ms. W's dispatch supervisor.

I find that the opening and closing of the hood of the bus was an essential task of Ms. W's job as a bus driver. It had to be done and she was responsible for getting it done whether or not others were around and willing to help her do it. Based on a letter from Woodbine Truck Centre Ltd.³and the testimony of Mr. McKee, I further find that the physical effort required to open and close the hood was at least 50 lbs and 40 lbs, respectively.

Ms. Langdon classified the special needs rehabilitation specialist job as medium-to-heavy work because it involved regular lifting and transferring of disabled children weighing more or less than 20 kg, the apparent dividing line between medium and heavy work. By that definition, if the task of opening and closing the hood is included, the bus driver job should also have been classified as medium. I find that the essential tasks of both jobs included tasks which were medium to heavy and that both were physically demanding.

To assess her capacity to return to these jobs, Dominion arranged for Ms. W to undergo a Work Capacity Evaluation on June 22, 1998 by Dr. L. E. Puodziukas, a general physician. This doctor's report⁴ states at the outset that he determined Ms. W's ability to work by reference to two components: "physical capabilities and job requirements." The rest of the report indicates that Dr. Puodziukas based his opinion on information elicited from Ms. W concerning her injuries and her jobs, the physical examinations and tests completed as part of his evaluation, records of treatment Ms. W received for the physical injuries sustained in the accident, the job site analyses conducted by the occupational therapist, Ms. Langdon, and a videotape of surveillance of Ms. W conducted by Dominion in March 1998. It is important to note that Ms. W mentioned a 1983 motor vehicle accident to Dr. Puodziukas but apparently told him that she had recovered from the whiplash injuries she sustained in that accident and that the January 1998 accident "did not aggravate these injuries."

Dr. Puodziukas concluded that Ms. W had "likely sustained a Grade III WAD injury with myofascial strain at the back" but that she was no longer disabled from these injuries and had the ability to return to both her pre-accident jobs. However, after expressing this opinion, Dr. Puodziukas advised "the reader" of his report to obtain certain records which were not supplied to him, including the clinical records of Ms. W's family doctors for the previous six years. Dr. Puodziukas stated that the purpose of obtaining these records was "to ascertain to what extent Ms. W had [prior to the accident] symptoms such as sleep disturbance, fatigue, poor memory, anxiety, lack of motivation, and headaches," all symptoms which Ms. W had reported to Dr. Puodziukas but which he described as "constitutional" and "not attributable to the MVA."

A copy of Ms. W's family doctors' records back to 1985 and a decoded OHIP summary back to 1993 were entered into evidence at the hearing.⁵ They establish that Ms. W's pre-accident medical history included long-standing symptoms of anxiety and depression for which she received treatment from Drs. Joel Glass and K. J. Coreless, her family physicians, from 1985 to June 1996. Ms. W continued to consult her new family physician, Dr. J. A. Thomson, for anxiety and depression in 1996 and in March 1998 and has consulted yet another family doctor, Dr. Dennis Seguin, for the same problems in 1999. Dr. Seguin referred Ms. W for evaluation by Dr. J. W. O'Riordan, a psychiatrist, in April 1999.

The family doctors' records confirm that Ms. W was involved in a motor vehicle accident in August 1983 and they indicate that she claimed to have sustained psychological as well as physical injuries in this accident. She was evaluated with regard to the former by psychologist, Dr. Harvey L. Burke and psychiatrists, Drs. Leonard S. Davies, J. Alan Long and J. Cooper. Their reports were written between 1986 and 1990.

In view of the apparent limitations on the scope of his enquiry, as stated at the outset of his report, and the clear limitations on the information he was supplied by both Ms. W and Dominion, I am not satisfied that Dr. Puodziukas turned his mind to the possibility that Ms. W's January 1998 accident contributed significantly to a disabling psychological condition.

That possibility was, however, addressed explicitly by two psychiatrists whose reports were also submitted into evidence. The first, dated April 28, 1999, was written by Dr. A. N. Hanick and was submitted on behalf of Ms. W.⁶ The second, dated June 23, 1999, was written by Dr. Vivian Rakoff and was submitted on behalf of Dominion.⁷ Both were written after taking Ms. W's history and evaluating her in person and after reviewing medical documents supplied by counsel but not listed in the reports.

The substance of Dr. Hanick's analysis and conclusions are set out in the following section of his report:

It is quite evident that Ms. W had suffered a difficult upbringing, given her alcoholic parents and given that she had suffered sexual abuse, although it is also evident that she had suffered two earlier troubled marriages and had earlier been raped on two occasions. She had also suffered an earlier motor vehicle accident in 1983, after which she had long suffered neck pain and persistent headaches and, indeed, in perhaps 1990, her chiropractor had diagnosed fibromyalgia. Nevertheless, despite all these earlier problems, Ms. W had persevered and had quite consistently held employment and even simultaneous jobs and had similarly been able to manage her household and had been attentive to her children. Even so, this history might well suggest underlying subconscious dynamics which deal with issues concerning competence versus incompetence and independence versus dependency. Whereas she had been able to persevere in the past and overcome her earlier problems, both physical and emotional, it is evident that these earlier problems may well have again progressively highlighted underlying dynamics concerning such a level of self-sufficiency and competency. She had also earlier struggled with her older son who had suffered brain injury in their earlier accident. Likely, given the occurrence of her recent motor vehicle accident of January 21, 1998 and given her consequently intensified headaches and greater and more distressing muscoloskeletal pain, Ms. W has likely suffered some psychoemotional elaboration of her distress and disability, given that such likely underlying subconscious dynamics have come more forcefully to the surface as a consequence of this last accident. In turn it is seen that several of her complaints indicate such a psychoemotional elaboration and, for example, her facial numbness and limb numbness and related complaints again indicate such likely subconscious dynamics. Whereas it is no longer technically appropriate to diagnose a histrionic (hysterical) process or conversion disorder when the principal complaint is that of pain, it is still well acknowledged that such subconscious dynamics add to and perpetuate such a level of suffering and disability. As a consequence, it is seen that Ms. W's chronic pain disorder and aspects of her disability are also associated with such psychological/psychiatric factors. It would seem likely that she has some tendency to convert such inner problems into somatic complaints and, perhaps, there had been an earlier tendency to do so, given her protracted musculoskeletal pain experienced following upon her motor vehicle accident of 1983 and also given that, perhaps in 1990, she had been seen to be suffering with fibromyalgia. Nevertheless, this last accident has greatly potentiated such a push towards somatic reaction and has brought about an even fuller state of suffering and disability.

Disability

Clearly, in her present state, it is evident that she cannot be returned to her previous work as a bus driver, especially given issues of safety, and similarly, it is quite evident that she cannot undertake the more physically-demanding work of a special needs worker and, similarly, it is not evident that she could manage the demanding chores of photography.

Dr. Rakoff's opinion was stated as follows:

I agree with Dr. Hanick in his assessment that Ms. W's upbringing has been a source of great difficulty to her and may account for some of her predisposition to see herself as severely damaged. To summarize, she suffered from having two alcoholic parents, being neglected and being physically and sexually abused. She had three marriages and is only happy in the last, most recent of these. Like Dr. Hanick, I believe that because of this patient's background of severe deprivation and trauma there may be a strong element of conversion in her physical symptomatology. I do not, however, consider that the accident is totally responsible for the symptoms of which she complains. I give more weight to the fact that the accident was only one of a series of difficulties that have characterized her not very stable life. This lady has had a number of marriages. Her relationship with her children has been consistently complex and problematic. I base this on the custody arrangements with her second husband. She has managed, it is true, to construct a hardworking life until the accident, but in the aspects of emotional consistency and security she has not had a history of stability or good functioning.

I agree with Ms. W herself that a work hardening program, a weaning off her painkillers and encouragement to see herself as able to function once again should be the fundamental therapeutic thrust.

I find that Dr. Hanick's opinion constitutes reliable medical evidence that Ms. W's accident of January 21, 1998 contributed significantly to her suffering a substantial psychological inability during the period July 30, 1998 to May 23, 1999 which prevented her from performing the physically demanding tasks of her pre-accident jobs as a bus driver and a special needs rehabilitation specialist. In reaching this conclusion, I also accept Dr. Rakoff’s view that the accident was not totally responsible for this inability and that the accident was only one of the difficulties in Ms. W's life. I nevertheless find that the contribution of the accident to Ms. W's inability to return to her pre-accident jobs was material or significant⁸ and that she is, therefore, entitled to IRBs for the period claimed.

QUANTUM OF IRBs:

In addition to the income she earned as a bus driver and a special needs rehabilitation specialist, Ms. W's 1997 income tax return reported a business income from R W Photography in the amount of $23, 589.52. Ms. W testified at the hearing that she earned this business income in her capacity as its sole proprietor. However, her application for accident benefits,⁹ which she admitted signing on January 29, 1998, indicated that her employment in this business ended November 1996. In accordance with section 61 of the Schedule, the application form only asked Ms. W for details of her employment "for the last 52 weeks." Ms. W may not, of course, have noticed this restriction when she signed the form but in her written statement to Dominion, which she admitted signing on March 5, 1998, she refers to her bus driver and special needs rehabilitation specialist jobs as her "only source of income."

At the hearing, Ms. W testified that Dominion's claims adjuster, John Naraine, informed her that her income from the photography business would be retroactively included in the calculation of her benefits once the amount she earned from the business had been confirmed later in 1998.

However, Mr. Naraine testified that given the dates of its duration as indicated in the application for benefits he gave Ms. W, no commitment or reason to believe that the photography business would be considered in the calculation of her IRBs. He also denied receiving an objection by telephone from Ms. W after sending her lawyer a letter dated March 4, 1998¹⁰ explaining the calculation of her IRBs without any reference to the photography business. This kind of objection was only received, he testified, well after her IRBs were terminated by letter dated July 14, 1998,¹¹ effective July 29, 1998.

Mr. Naraine's version of events is corroborated by evidence created and presented by Ms. W. On September 28, 1998, Ms. W underwent a musculoskeletal assessment and a functional capacity evaluation at Canada Accident Rehab Group. In describing Ms. W's pre-accident employment, the reports written by a chiropractor and an exercise physiologist¹² refer to her bus driver and special needs rehabilitation specialist jobs but make no mention of her photography business. The exercise physiologist, Atila Balaban, acknowledged on examination-in-chief that he had been instructed by Ms. W's counsel not to include any information in this regard in the reports.

This evidence leads me to find that it was Ms. W and her counsel, not Mr. Naraine or Dominion, who were responsible in the first instance for her IRB claim being calculated without regard to her income from the photography business. The significant delay in attempting to have income from this source included in the calculation is the first factor I consider in determining whether or not, on the balance of probabilities, Ms. W has proved the quantum part of her case.

The second factor I consider is the number of hours Ms. W claimed on various occasions to have worked each week at each of the three jobs in question. I have summarized the evidence presented at the hearing in the following table:

source/job

bus driver

special needs

photography

TOTAL

app. for benefits

14

5

60

79

occup. therap.

7.5

25-30

nil

Dr. Puodziukas

20

25

nil

Bowman13

14

21

60

95

Balaban

20

6-8

nil

her testimony

20

16-30

30-100

66-150

Ms. W testified that Mr. Balaban had not correctly recorded the information she gave him but even admitting the possibility of such transcription errors and taking scheduling and seasonal fluctuations into account, I find that the information Ms. W provided on these various occasions was far from consistent. Moreover, I observe that with the addition of the hours Ms. W reported working in the photography business, the total number of hours she claims to have worked each week rises from 66 to 150. I find these to be implausible, if not impossible, work hours. I find more plausible the work schedule contained in the description Ms. W gave Dr. Puodziukas of her "typical work day," a description which, again, makes no mention of the photography business:

Ms. W worked at two jobs on a daily basis, a school bus driver and a rehabilitation specialist. She left the house at 7:30 AM and arrived at the bus yard at 7:40 AM. She circle-checked the bus for 15 to 20 minutes, then made her school bus run making 5 stops, and then returned to the bus yard at 9:30 AM. Three days per week, she did runs in the afternoon as well and had to clean the bus and sweep it, cleaning the seats and windshield. She also had to refuel her bus every second day. She returned home to do cooking and housework until 2:30 PM. She drove to Oakville for 3:15 PM, where she walked twins home from school and worked on an independent basis with one child until 6:00 PM while the baby sitter looked after the other child, 5 days per week. Two days per week, she worked with another handicapped child, aged 12, from 6:30 PM until 8:00 PM. During this time, she prepared and pureed his food, fed him, taught him hygiene and dressing, and how to communicate. She did exercises with him or took him for a walk in his wheelchair. She also changed his diapers. She tried to teach him skills.

Finally, as regards her essential tasks in the photography business, Ms. W testified that the business mainly involved taking photographs at weddings and that her tasks included placing advertisements, writing contracts, assisting the photographer by lifting and carrying photography equipment, posing couples, delivering and picking up prints from photofinishing labs, showing proofs and taking final orders. Ms. W identified assisting the photographer by lifting and carrying photography equipment as the physically demanding task which she could not perform after the accident. She testified that the various pieces of equipment weighed up to 200 lbs in total and that a second set was carried to respond to any equipment failure.

However, on cross-examination, Ms. W was referred to a job site analysis¹³ conducted on the job of photographer at R W Photography. This analysis was again conducted by occupational therapist S. P. Langdon at the request of Dominion because Ms. W's husband, R W, was also injured in the accident of January 21, 1998. As Ms. W had acknowledged in her examination-in-chief, Mr. W was the founder of the business and remained the principal photographer when she took it over from him in 1996. Based on her interview with Mr. W and a review of the National Occupations Classifications, Ms. Langdon classified the job as follows: "light work, handling loads from 5-10 kg." She referred to equipment used as "camera and vehicle," with no mention of a second set of equipment. Though given an opportunity to do so, Ms. W provided no credible reason to doubt the information and classification contained in this job site analysis. Nor was

Mr. W called as a witness to provide such a reason.

In my view, the evidence, taken as a whole, does not support a finding that the accident prevented Ms. W from performing her essential tasks in the photography business. I find that these tasks were not as demanding as she claimed, either physically or in terms of the time required to perform them. Her delay in reporting this source of income strongly suggests that, during the period when her symptoms would have been the most acute, she did not see herself as disabled from performing this work either.

The accident may, of course, have prevented Mr. W from performing his essential tasks in the photography business but any loss of income to Ms. W caused by Mr. W's injuries does not provide an additional basis for Ms. W's claim for IRBs. On the contrary, Ms. W's claim for IRBs in respect of the photography business is undermined by the fact, which I find, that it was much more likely Mr. W who performed the physically demanding tasks of the business which Ms. W may not have been able to perform after the accident. I note that Dr. Hanick does not refer to or recognize this fact before expressing the opinion: "it is not evident that [Ms. W] could manage the demanding chores of photography." I, therefore, assign little weight to his opinion in this regard.

For these reasons, Ms. W's claim for greater IRBs based on her pre-accident income from the photography business is rejected.

This conclusion relieves me of the obligation to deal with one of the arguments made by counsel for the Insurer but since a good deal of hearing time was spent eliciting evidence in support of it, I believe a comment is in order.

Records entered into evidence¹⁴ establish that Ms. W, carrying on business as R W Photography, made an assignment in bankruptcy on April 17, 1998 and that most of the customers listed in Ms. W's 1997 income tax return made claims as creditors in the bankruptcy proceedings and, some, as plaintiffs in small claims court actions. Counsel for the Insurer argued that the claims of these customers contradicted the report of business income contained in Ms. W's income tax return and deprived Ms. W of the basis of her claim for pre-accident income in respect of the photography business.

While arbitrators often look beyond income tax returns in determining pre-accident income claims and are sometimes required to determine when particular amounts were earned, I was not referred to any case in which an arbitrator looked behind the transactions of private parties to determine whether money paid for services rendered was earned for purposes of determining the pre-accident income of the party rendering the service. My comment is that, as an arbitrator, I would have been extremely reluctant to embark upon such inquiries. I make no comment about whether I would have been prepared to determine pre-accident income based upon a relevant judgment of a bankruptcy, small claims or other court as the Insurer in this case entered no such judgment into evidence.

EXPENSES:

The parties did not address the issue of expenses at the hearing but may now do so if necessary.

September 23, 1999

David Leitch

Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 180

FSCO A98-001486

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

D. W.

Applicant

and

DOMINION OF CANADA GENERAL 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. Duration of benefits: Ms. W is entitled to IRBs for the period July 30, 1998 to May 23, 1999.

2. Quantum of benefits: the calculation of Ms. W's IRBs does not include her 1997 reported income from a photography business.

September 23, 1999

David Leitch

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
2. 2Exhibit 5, Tabs and 10, Occupational Therapy Job Site Analysis Reports
3. 3Exhibit 1, Tab 18, Letter of Service Manager.
4. 4Exhibit 13, Tab G1, AssessMed Work Capacity Evaluation report dated June 22, 1998.
5. 5Exhibit 3 (medical notes and records), Exhibit 1, Tab 6,(medical notes and records of Dr. J. Thomson), Tab 11 (decoded OHIP summary), Tab 12 (clinical notes and records of Dr. D. Seguin) and Tab 13 (clinical notes and records of Drs. Corless and Bare).
6. 6Exhibit 1, Tab 8, Dr. A. Hanick's letter dated April 28, 1999.
7. 7Exhibit 1, Tab 10, Dr. V. Rakoff's letter dated June 23, 1999.
8. 8See Matichuk v. Commercial Union Assurance Company,( FSCO A98-000318, March 19, 1999) and the decisions cited therein.
9. 9Exhibit 5, Tab 2, Application for Benefits.
10. 10Exhibit 6, Letter of John Naraine dated March 4, 1998.
11. 11Exhibit 5, Tab 11, Letter of John Naraine dated July 14, 1998.
12. 12Exhibit 1, Tab 7, Musculoskeletal assessment dated September 28, 1998.
13. 13Exhibit 12, Occupational Therapy Job Site Analysis
14. 14Exhibit 1, Tab 15 (bankruptcy file of Trustee in Bankruptcy) and Exhibits 4 (complaint letter against R W Photography), 7 (claims against R W Photography), 8 (R W Photography records), 9 (Bankruptcy report), 10 (Bankruptcy statement), 11 (Applicant's Preliminary Interview) and 21(Investigation reports dated June 17, 1999).