Neutral Citation: 1999 ONFSCDRS 220

FSCO A98-001267

BETWEEN:

SILVANA SABTI

Applicant

and

AXA INSURANCE (CANADA)

Insurer

REASONS FOR DECISION

Before:

William Renahan

Heard:

September 20, 21 and 22, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Frank A. Sabetti for Ms. Sabti

Krista Springstead for AXA Insurance (Canada)

The Applicant, Silvana Sabti, was injured in a motor vehicle accident on February 23, 1998. She applied for and received statutory accident benefits from AXA Insurance (Canada) ("AXA"), payable under the Schedule.¹ AXA terminated weekly income replacement benefits on June 20, 1998 on the basis of an examination by Dr. T. Schapira, a specialist in occupational medicine. The parties were unable to resolve their disputes through mediation, and Ms. Sabti applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended. The issue in this hearing is:

Is Ms. Sabti entitled to income replacement benefits after June 20, 1998 as a result of injuries she sustained in a motor vehicle accident on February 23, 1998?

Ms. Sabti is not entitled to income replacement benefits.

Preliminary issues:

Silvana Sabti suffered injuries in motor vehicle accidents which occurred on February 23, 1998 and five months later, on June 10, 1998. AXA paid income replacement benefits for disability arising out of the first accident until June 20, 1998. It terminated those benefits on the basis of investigations done before the second accident. Ms. Sabti did not submit an application for benefits to AXA for claims arising out of the second accident. Her counsel asked me to make my determination on Ms. Sabti's entitlement to income replacement benefits on the basis of both accidents. Since Ms. Sabti did not make an application for benefits with respect to the second accident and since AXA only investigated and adjusted the claim from the point of view of the first accident, I ruled that I would determine Ms. Sabti's entitlement to income replacement benefits with respect to the injuries she suffered in the first accident and not with respect to any injuries she suffered in the second accident.

Ms. Sabti tendered the notes and records of her family doctor at the hearing. The notes did not cover the period around the second accident. Mr. Sabetti agreed to provide me and counsel for the insurer with a transcribed copy of the missing notes. I have not received those notes.

Background:

Ms. Sabti is 41 years old now. Since 1995, she has raised her two daughters on her own. She has operated a day care centre for children and worked as a receptionist in her former husband's hairdressing salon. Periodically, she worked as a restaurant waitress. At the time of the first motor vehicle accident she had worked three months part-time as a waitress in one restaurant and as a cook in her brother's bakery. As well, she had just started a third part-time job as a waitress in another restaurant. She owns and lives in a six-unit apartment building which she manages.

The first accident occurred while Ms. Sabti was stopped at a traffic light and her vehicle was struck from behind. She drove her vehicle to a collision reporting centre and then home. That night she could not sleep and drove to the hospital complaining of pressure in her head. She was discharged with instructions to see her family doctor. Since then Ms. Sabti has complained of a variety of symptoms and pains and she has not attempted to return to work. Less than four months after the first motor vehicle accident, Ms. Sabti was involved in a second motor vehicle accident on June 10, 1998 when her vehicle was again struck from the rear. She said that the first accident was more serious than the second.

Credibility:

Ms. Sabti was not a good witness. As I will discuss below, much of her testimony was inconsistent. As well, much of the complaints as recorded by the doctors who treated and examined her are inconsistent.

Legal test:

Under sections 4 and 5 of the Schedule the insurer shall pay a person who suffers an impairment as a result of an accident an income replacement benefit. Up to the first 104 weeks of disability, Ms. Sabti is entitled to an income replacement benefit for the period she suffers a substantial inability to perform the essential tasks of her employment.

Essential tasks of employment:

Ms. Sabti worked part-time in the Cafe Caledonia as a waitress from 11:00 a.m. to 3:00 p.m. five days a week and all day Saturday. She also worked at her brother's bakery. She claimed that she worked Monday to Friday from 4:00 p.m. to 11:00 p.m., that the hours were flexible and that sometimes she worked with someone else and sometimes by herself. She said that the first accident occurred around 6:00 or 6:30 p.m. on her way to do grocery shopping before going to work at the bakery. Since the accident occurred at a time she would normally be at work, I find that her hours at her brother's bakery were quite flexible and I do not accept that she worked as many hours as she claimed. The third job was at Cody's Restaurant where she started work the week before the accident. She said that she worked two mornings before going to the Cafe Caledonia and all day Sunday.

I find that the essential tasks of Ms. Sabti's waitress work required her to work quickly serving customers. She carried up to five plates of food at a time. She was on her feet walking most of the shift with few and short breaks. The bakery work required her to prepare large trays of pastries. She cut dough and placed it into a flattening machine. She lifted boxes or bags of ingredients and poured them into a mixing machine. She placed filling on flattened dough and rolled pastry by hand. She lifted trays into a steamer and then into an oven to bake. The job required good strength and the ability to lift up to 50 pounds very occasionally, with frequent light lifting. As with the waitressing jobs, she was on her feet continuously.

Impairment:

"Impairment" is defined in the Schedule as a loss or abnormality of a psychological, physiological or anatomical structure or function.

Ms. Sabti did not suffer any bruises, scrapes or swelling as a result of the first accident. She testified that she suffers pain in her neck, upper back, mid back, low back, tail bone and in the right shoulder, arm, and elbow and the chest. She did not provide consistent or clear testimony as to what her major complaint was and what prevented her from working. Initially, she testified that pain in her elbow and numbness in her right hand and right hip prevented her from working. Then she testified that her worst pain was in her tail bone and the right hip. Then she said her main concern was her lower back, which she distinguished from her tail bone.

Dr. Lina Bala is Ms. Sabti's family doctor. Dr. Bala referred Ms. Sabti to Dr. M. Roscoe, an orthopaedic specialist, for neck, shoulder and lower back pain. He reported to Dr. Bala in August 1998 that "Her symptoms seem to be much more severe than one would expect, and I think there is a degree of reactive type of pain occurring in this instance."

Dr. J. Peacock, a neurologist, reported to Dr. Bala in November 1998 that Ms. Sabti was "a somewhat vague historian" and that the neurological examination was normal. He noted:

All the examinations were associated with grimacing, sharp intakes of breath, much overacting and in walking, she walked with a rather bizarre gait, keeping one hand clutched between her buttocks "to relieve the pain" in her lower back. . . . I think a lot of her symptoms are related to anxiety and her fixation on pain. I do not really think that any therapy except reassurance is going to be very effective in relieving her symptoms."

Dr. T. Schapira is experienced in occupational health. He examined Ms. Sabti for Axa and reported that the most affected area was the upper back radiating to the right shoulder, arm and breast. He noted that she behaved as if she was in acute and somewhat exaggerated pain on movement of her neck, right shoulder and arm.

Dr. A. Oshidari is a physiatrist who examined Ms. Sabti for Axa in August 1998. He found that Ms. Sabti was very pain-focused. He made a primary diagnosis of whiplash and lumbar strain and a secondary diagnosis of illness behaviour.

Phil Towsley is an occupational therapist who performed a functional capacity evaluation for Axa in September 1998. He noted that Ms. Sabti pressed her hand into her hip to induce pain and make herself scream.

Dr. J. McLachlan is a psychologist who treated Ms. Sabti for anxiety and depression between August 27 and October 28, 1998. He noted that her most troublesome pain was in the right hip and upper leg and back.

Dr. M. Bail, a psychiatrist, saw Ms. Sabti for Axa. He found that she was not suffering from a psychiatric disorder.

Dr. L. Weisleder, an orthopaedic surgeon who saw Ms. Sabti at a medical/rehabilitation designated assessment centre, found that Ms. Sabti sustained some injury to her right hip and coccyx (tailbone) in the second motor vehicle accident.

Ms. Sabti underwent a number of x-rays and a bone scan. She has severe cervical spondylosis at C4-5 and sclerosis at L5-S1. The only explanation of the radiological reports was that of Dr. Bala, who said the changes were due to the aging process.

The evidence on physiological and anatomical impairment is inconsistent. Ms. Sabti was inconsistent when she described what her most serious problem was. At one point she testified it was tail bone and hip pain and that she developed it before the second motor vehicle accident. However, the doctors who noted tail bone and hip pain, including Dr. Bala, noted it after the second accident.

As well, the medical evidence was contradictory as to whether Ms. Sabti demonstrated any objective evidence of impairment. Dr. A. Nourali, a chiropractor, found limited range of motion in the cervical spine. Dr. A. Erwin, a radiologist, reported excellent motion in the cervical spine on flexion and extension.

The evidence on physiological or anatomical impairment is inconsistent. I am not satisfied that Ms. Sabti suffered from a physiological or anatomical impairment as a result of the first motor vehicle accident after Axa terminated benefits on June 20, 1998.

However, the evidence was consistent that Ms. Sabti suffered from depression and anxiety after the first motor vehicle accident and I find that she suffered a psychological impairment as a result of the first motor vehicle accident which existed beyond June 20, 1998.

The question is whether she was disabled from performing the essential tasks of her employment due to this psychological impairment after June 20, 1998.

Disability:

I heard very little evidence on disability due to psychological impairment.

The only expert opinions on disability due to psychological impairment are those of Dr. McLachlan, who treated Ms. Sabti after the second accident, and Dr. Bail. Dr. McLachlan felt that the first accident did not cause any "psychological sequelae." He found that "depression and anxiety was attributable" to the second motor vehicle accident and required treatment. In September 1998, Dr. Bail found that Ms. Sabti was not suffering from a psychiatric disorder.

After Axa terminated income replacement benefits Ms. Sabti continued to manage her six-unit apartment building and, except for her evidence that she hired someone to remove the snow, I heard no evidence that her work around the building changed. She spends her days driving her children to school, driving to medical appointments and visiting a few friends. I heard no persuasive evidence that she is in any way disabled from engaging in her normal activities of daily living.

Ms. Sabti argued that she was motivated to return to work. However, I find that she failed to follow the recommendations of a number of doctors who recommended that she exercise in order to overcome her pain. Dr. Nourali, her chiropractor, Dr. Bala, her family doctor, Dr. Anis at a rehabilitation clinic recommended by Dr. Bala, Dr. Oshidari, a physiatrist engaged by Axa and Dr. Weisleder, an orthopaedic surgeon at a medical/rehabilitation DAC, all recommended that Ms. Sabti exercise. Despite these recommendations, Ms. Sabti said that she stopped exercising after she saw Dr. Schapira in April 1998. Ms. Sabti made no attempt to work at her brother's bakery before he sold it in the spring of 1999, even though the hours were flexible, she could work with someone else and her brother would accomodate her. When asked whether she had talked to her brother about light duties she replied: "Why would I?" Although Ms. Sabti has borrowed money in order to survive and needs income to pay her debts, I reject her submission that she was motivated to return to work.

Ms. Sabti argued that she had a good work history which showed that she was motivated to work. However, I find that her employment before the accident was limited. She filed a summary which indicated that she started work at the restaurant six months before the accident. However, the employer told the occupational therapist who completed the job site analysis that Ms. Sabti started work three months before the accident. Similarly, Ms. Sabti testified that she started at her brother's bakery six months before the accident. However, the record of employment from the bakery indicates that she started three months before the accident. Ms. Sabti suffered injuries in a series of motor vehicle accidents about 14 years ago and although she said she "wasn't really injured," she stayed off work for two and a half years. She suffered another accident at work in 1995 which kept her off work one year. I reject her submission that her work history shows that she is motivated to return to work.

I find that Ms. Sabti is not disabled by the depression and anxiety she suffers from. I found no evidence that she was disabled in other areas of her life. She offered no credible evidence to explain why she has not tried to work at the bakery where her brother would have accommodated her or why she has not followed the recommendations of her treating doctors to exercise. I find that she is not disabled from performing the essential tasks of her employment after June 20, 1998 as a result of injuries she sustained in the motor vehicle accident of February 23, 1998.

EXPENSES:

If the parties cannot agree to entitlement to expenses, they may make written submissions within 60 days of the date of this decision.

November 10, 1999

William J. Renahan

Arbitrator

Date