Neutral Citation: 1999 ONFSCDRS 207

FSCO A97-001715

BETWEEN:

SOLANGE DEMELO

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

June 14, 15, 16, and 17, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

L. Brent Vickar for Mrs. DeMelo

Colin S. Jackson for Allstate Insurance Company of Canada

Solange DeMelo was injured in a motor vehicle accident on May 25, 1996. Allstate Insurance Company of Canada ("Allstate") paid her income replacement benefits under the Schedule¹ until July 27, 1996. After the termination of her benefits, Mrs. DeMelo applied to the Financial Services Commission of Ontario for an arbitrator to determine her claims for income replacement benefits, physiotherapy treatment and the costs of a functional assessment.²

The issues in this hearing are:

Is Mrs. DeMelo entitled to income replacement benefits from July 27, 1996 to August 22, 1998?
Is Mrs. DeMelo entitled to reimbursement for physiotherapy expenses incurred at College Rehabilitation Clinic?
Is Mrs. DeMelo entitled to reimbursement for a functional evaluation at Prevent Assessment and Rehabilitation Clinic?

Mrs. DeMelo is entitled to income replacement benefits under Part II of the Schedule from July 27, 1996 until July 20, 1997, plus interest according to the Schedule.
Mrs. DeMelo is not entitled to reimbursement for the cost of physiotherapy treatment at College Rehabilitation Clinic.
Mrs. DeMelo is not entitled to reimbursement for the cost of a functional evaluation at Prevent Assessment and Rehabilitation Clinic.

Mrs. DeMelo's car was rear-ended while she was stopped at a traffic light on May 25, 1996, her vehicle sustaining $330 damage. Her head was turned sideways, talking to her passenger at the time of the collision. Mrs. DeMelo went to the hospital the next day, complaining of left-sided neck, shoulder and low back pain, along with headaches. She subsequently developed depression, in addition to her soft tissue injuries. Mrs. DeMelo has received counselling and physiotherapy treatment.

Mrs. DeMelo claims that she could not perform the heavier physical labour of the two jobs she held during the year before the accident. She was employed as a full-time home health aid at Central Neighbourhood House until the accident, and just before Christmas 1995 she quit cleaning offices for Hurley Corporation. Mrs. DeMelo resumed home health aid work on August 22, 1998. She claims income replacement benefits to that date.

In order to succeed, Mrs. DeMelo must prove on a balance of probabilities that she suffered a substantial inability to perform the essential tasks of her pre-accident employment as a result of her injuries from the car accident.

Pre-Accident Jobs:

Mrs. DeMelo testified that she assisted four people in their homes during weekdays, and occasionally on weekends. In addition to assisting their physical needs, she provided emotional support for her shut-in patients as part of her daily routine.

At 7:00 a.m., Mrs. DeMelo drove to her first client's home, a man paralysed on one side by stroke. She transferred him from the bed to a wheelchair, bathed and dressed him, prepared his breakfast and every other day cleaned his house. Mrs. DeMelo's next client suffered complete paralysis from multiple sclerosis. Between 9:30 a.m. and 11:30 a.m., she bathed this lady, did her shopping, cooked, cleaned her apartment and fed her. Her first afternoon client was also stricken with multiple sclerosis. Mrs. DeMelo used a hoist to move her patient, took her to the bathroom, changed her intravenous feed, dressed her, cooked and cleaned her living quarters. Mrs. DeMelo's fourth patient was relatively independent, and so she was only required to clean the apartment. She finished work around 5:30 p.m.

Central Neighbourhood House confirms Mrs. DeMelo's evidence that her duties included housekeeping, meal preparation, personal care, hygiene and errands. Her employer adds that Mrs. DeMelo was also responsible for laundry.

Until December 23, 1995, Mrs. DeMelo had a second job cleaning offices. After 5:30 p.m., Mrs. DeMelo drove to the Globe & Mail on Front Street, where she gathered rubbish, vacuumed, wiped desks and washed dishes during weekday evenings. About once a week Mrs. DeMelo used a buffer on the floors and mopped.

Pre-Accident Health:

Mrs. DeMelo testified and the medical reports indicate that she developed temporal mandibular joint syndrome ("TMJ") after a much earlier auto accident during her youth in Brazil. There is no evidence she was being treated for or was suffering from any disability from this condition or any other injuries. Additionally, there is no evidence to contradict Mrs. DeMelo's testimony and the documents from her employer that she was working full-time during the year prior to the accident, and did not miss any time from work.

Mrs. DeMelo's marriage was stressful at the time of the accident. She testified that she was assaulted by her husband twice during the year beforehand. In December 1995, he promised to provide her more financial support, and she consequently quit her evening job cleaning offices. Mrs. DeMelo stated that they separated in February 1996, only months before the accident.

Mrs. DeMelo denied she suffered any emotional distress from this marital situation. I do not accept this as plausible. However, the evidence is that she was working full-time, without absence during the year prior to the accident. Thus, I find that at the time of the accident Mrs. DeMelo was not functionally affected by any marital discord, emotional problems or TMJ.

Mrs. DeMelo's Evidence:

Mrs. DeMelo testified that she did not go to work on the Monday following the accident. Her family doctor sent her to physiotherapy, where she was unable to do the exercises. Mrs. DeMelo stated she could not bend over or lift because of pain in her left shoulder, neck and back. Her jaw pain flared up about three or four days after the accident while she was eating.

Mrs. DeMelo gave evidence about her increasing despondency immediately after the accident, explaining that depression, sleep loss and inability to eat made it more difficult to function. Medication did not help. I found Mrs. DeMelo's testimony that she felt unable to provide emotional support for her clients due to her own problems from the accident particularly credible. She explained that it was not until after counselling with a psychotherapist, Dr. Safar Daei, in December 1997 that she felt able to cope with her work.

Mrs. DeMelo speculated that she could not safely move her clients after the accident. Working alone and using either a bed hoist for completely paralysed clients or her own strength to make bed to wheelchair transfers took Mrs. DeMelo between five to fifteen minutes prior to the accident. Mrs. DeMelo stated that she could not maintain the considerable strength and dexterity to safely manoeuvre the heavy bedridden people after the accident. This was one of her main job functions.

Mrs. DeMelo did not specifically identify the cleaning chores she was unable to perform. She explained that her relatives or her husband cleaned her home after the accident because she could not bend or lift. She admitted taking a temporary position cleaning offices steadily for approximately two weeks in December 1997, and had also applied to Canadian Tire for work in 1997. Mrs. DeMelo asked Central Neighbourhood House if she could resume work in 1996, but her family doctor would not approve her return to full-time duties.

Except for her denial of emotional distress from her marriage, I find Mrs. DeMelo's evidence consistent, objective and credible. I further find from her pre-accident work history and post-accident attempts to resume employment that she is motivated to work.

Medical and Psychological Evidence:

Mrs. DeMelo attended physiotherapy from June to August 1996. Mrs. DeMelo improved functionally, but her therapist, Michelle DeMarchi, testified that she had a negative attitude and demonstrated exaggerated pain. Ms. DeMarchi felt that emotional factors could play a role in her reduced performance.

During July 1996, Dr. A. Galea examined Mrs. DeMelo for Allstate. Dr. Galea, a sports medicine specialist, reported 50 percent restriction of her neck and significant restrictions in her thoracic spine. However, he felt she exaggerated pain, that Mrs. DeMelo did not have any disability and should resume her work as a health aid.

Allstate relied on two assessments conducted during the first two months after the accident. Dr. Galea testified that Mrs. DeMelo did not exhibit physical restrictions after conducting his examination. He agreed that psychological factors may influence her pain perception, but did not think it explained the inconsistency he observed between her behaviour during and after his examination. Dr. Gabriel Vadasz conducted a disability assessment (DAC) in July 1996. He too found neck and back restrictions, but could not find any objective impairments. Based on the relatively small property damage to her car, and no physical injury, he found no disability. Both recommended her return to full-time work.

At the time these two physicians assessed Mrs. DeMelo in 1996, she did not evidence a psychological reaction to the accident. Dr. Galea and Dr. Vadasz considered only her objective physical injuries, dismissing her complaints as an overreaction or exaggeration. First, it does not appear that Dr. Galea understood the stamina or heavy lifting requirements of Mrs. DeMelo. While Dr. Vadasz admitted in his report that Mrs. DeMelo's job was "somewhat physically demanding" he only considered her objective physical impairments, not her ongoing headaches and stress. Their analysis being limited to objective physical signs of impairment, I do not accept their opinions.

After Mrs. DeMelo attended nine physiotherapy treatments between February and April 1997, Prevent Assessment and Rehabilitation Clinic assessed her functional abilities. The chiropractor reported that Mrs. DeMelo failed all ten strength and endurance tests.

When Dr. Ludmilla Kohut, her family physician, reported in May 1997 that Mrs. DeMelo could not perform repetitive bending and heavy lifting, she also mentioned post-traumatic stress and referred her to a specialist in physical medicine, Dr. A. Kachooie.

Dr. Kachooie's May 1997 examination found Mrs. DeMelo had mild soft tissue tenderness in her shoulders with full range of motion, restrictions in her cervical spine and significant neck pain on palpitation, reproducing headache symptoms. None of the tests ordered by Dr. Kachooie identified any physical cause for these symptoms. His examination findings of mild soft tissue injuries is similar to the other examining medical experts in this claim. Yet, Dr. Kachooie diagnosed that Mrs. DeMelo had sustained a moderate to severe whiplash injury. On this exaggeration of his findings, I am not prepared to accept Dr. Kachooie's opinion. It is clear that Mrs. DeMelo's jaw pain is unrelated to this accident. She was referred to Dr. Vali Khadivi, a prosthodontist, who reported that the problem did not commence with this accident. His evidence and that of other experts is that though this accident precipitated a flare-up, Mrs. DeMelo had TMJ causing periodic jaw pain prior to the accident. I find that the accident was not a significant contributing factor to Mrs. DeMelo's TMJ problem.

Dr. Daei counselled Mrs. DeMelo between June and September 1997. His tests showed moderate to high levels of anxiety and depression. Mrs. DeMelo described herself as irritable, moody and in distress, and Dr. Daei indicates that she was reacting to perceived physical limitations, and that she thought it was beyond her control. Based on her prior dedication to work, her history, the test results and clinical picture, Dr. Daei concluded that Mrs. DeMelo's emotional and psychological symptoms were a secondary result of the accident. She was making progress through the counselling, and he found she was capable of resuming "her pre-MVA lifestyle."

Dr. Daei gained insight to Mrs. DeMelo's psychological reaction to the accident through testing and numerous counselling sessions. His report is balanced, insightful and I rely on his opinion

The September 1997 assessment of Mrs. DeMelo's treatment needs at the Toronto Hospital (Designated Assessment Centre) found no objective physical problems to explain her symptoms, and did not recommend further treatment. However, the corresponding evaluation of Mrs. DeMelo's psychological treatment, performed by Dr. Leonard Goldsmith, recommended three months of intense behavioural therapy to address her anxiety and depression.

Dr. Goldsmith reported Mrs. DeMelo's self-rating as "dysfunctional" was incongruous with his clinical observations of her because she was able to concentrate and furnish precise information during interviews. He concluded that Mrs. DeMelo overstates stress, adding, "I believe that her accident is a contributing factor, but it may not account entirely for her symptoms, particularly her manifest irritability and anger." Neither Dr. Goldsmith or any other expert accuses Mrs. DeMelo of conscious malingering or deliberately faking her symptoms.

Analysis:

This was a relatively minor accident, and all the experts except Dr. Kachooie, agree that Mrs. DeMelo suffered a mild soft tissue injury. Therefore, I find that while she did suffer modest residual soft tissue injury, her functional disability after the termination of her benefits is not attributable to physical injuries arising from the accident.

Although Mrs. DeMelo was under emotional pressure from her marriage prior to the accident, she worked full-time. Her evidence that she sought to resume work as a health aid after the accident in 1996, and took a temporary cleaning job in December 1997 supports my finding that she is a motivated person. Based on her credibility, together with the opinions of Dr. Daei and Dr. Goldsmith on the causation of Mrs. DeMelo's psychological problems, I find the accident is a significant contributor to her depression and anxiety.

The evidence establishes that Mrs. DeMelo's psychological problems affected her ability to work. Mrs. DeMelo's statements that she could not provide emotional support for her patients nor keep up her stamina to provide the relatively heavy demands of caring for four invalids and their homes is credible in light the two psychological experts' evidence that she suffered depression and anxiety. On this, I am prepared to accept that Mrs. DeMelo suffered a substantial inability to perform the essential tasks of her pre-accident work until the summer of 1997.

However, after Dr. Daei's July 20, 1997 report, there is no opinion from a psychological expert indicating that Mrs. DeMelo was disabled. Dr. Daei reported she was progressing and could resume her pre-accident activities. Mrs. DeMelo admitted that she felt able to cope with work after counselling with Dr. Daei, and it is clear she was quite functional in December 1997 when she took a temporary cleaning job. She found it difficult to lift and bend, but was working two full weeks at a physical job. Thus, I find Mrs. DeMelo suffered a substantial inability to perform the essential tasks of her pre-accident employment until July 20, 1997, and is entitled to income replacement benefits under Part II of the Schedule accordingly, together with interest thereon under the Schedule.

Physiotherapy Treatment and Functional Assessment:

Mrs. DeMelo has the burden to prove that her treatment is reasonable and necessary due to her accident injuries. There is considerable evidence to support Allstate's contention that the initial assessment plus nine treatment sessions Mrs. DeMelo received from February 14 to April 25, 1997 were not reasonable or necessary.

Mrs. DeMelo initially received physiotherapy at College Street Clinic after the accident. In the midst of that program, Dr. Galea agreed that she should continue for an additional three weeks. Ms. DeMarchi gave evidence that Mrs. DeMelo would derive no therapeutic benefit from further treatment after her August 12, 1996 discharge. The same month, the Toronto Hospital, the DAC facility, gave a second opinion that Mrs. DeMelo would not benefit from a further supervised exercise program because she had already received similar treatment.

Almost a year later, Mrs. DeMelo's family physician filled out health practitioner certificates (May and June 1997) recommending therapy, and a month later Dr. Kachooie recommended a six to eight week course of treatment. But these two recommendations in the summer of 1997 post-date the services, and no expert opinion supports their reasonableness or necessity prior to or during their continuance.

Dr. Kachooie's overstatement of her injuries leads me to reject his recommendation, and her family physician's recommended "therapy" in her brief statements in the health certificates do not discuss her condition sufficiently or analyse her treatment needs to my satisfaction. I choose to rely on Ms. DeMarchi's and the Toronto Hospital's opinions for treatment, that Mrs. DeMelo's problems were not going to be resolved through physiotherapy. In fact, it is Mrs. DeMelo's own admission on the witness stand that physiotherapy did not help her. Not surprisingly, I find that her treatment at College Rehabilitation Clinic was not reasonable or necessary.

A kinesthesiologist at Prevent Assessment and Rehabilitation Clinic conducted a computerized functional evaluation in April 1997. Allstate denies the $1,200 cost. As there is no supporting expert opinion why this evaluation was conducted, I find that the April 1997 functional abilities evaluation was not reasonable or necessary.

EXPENSES:

The conduct of this matter was very efficient and Mrs. DeMelo has been successful recovering accident benefits. I would normally find that she is entitled to an award of her expenses in this arbitration, subject to the parties' further submissions on amounts if they cannot resolve particulars.

October 25, 1999

Fred Sampliner Arbitrator

Date