Neutral Citation: 1999 ONFSCDRS 222

FSCO A97-001884

BETWEEN:

ACHALA SHARMA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

William J. Renahan

Heard:

September 27, 28 and 29, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

L. Brent Vickar for Ms. Sharma

Ian D. Kirby for State Farm Mutual Automobile Insurance Company

The Applicant, Achala Sharma, was injured in two motor vehicle accidents on December 23, 1994 and August 27, 1996. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm paid income replacement benefits with respect to the first accident from December 30, 1994 until May 17, 1996. State Farm paid income replacement benefits after the second accident from September 2, 1996 until December 31, 1996. The parties were unable to resolve their disputes through mediation, and Ms. Sharma 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:

Is the Applicant entitled to income replacement benefits pursuant to section 7 of the Schedule for the period May 17, 1996 to September 2, 1996 and for any time after December 31, 1996?
Is the Applicant entitled to supplementary medical benefits pursuant to section 36 of the Schedule in the amount of $3,500 for acupuncture provided by Dr. Rad?
Is the Applicant entitled to rehabilitation benefits in the amount of $1,190.63 pursuant to section 40 of the Schedule for services provided by Comprehensive Disability Management Inc.?
Is the Applicant entitled to supplementary medical benefits in the amount of $3,145.80 pursuant to section 36 of the Schedule for treatment provided by Therapeutic Massage Clinic?

The Applicant is entitled to income replacement benefits for the period May 18, 1996 to September 2, 1996 and for the period January 1, 1997 to May 12, 1999 together with interest.
The Applicant is not entitled to supplementary medical benefits pursuant to section 36 of the Schedule for acupuncture provided by Dr. Rad.
The Applicant is not entitled to rehabilitation benefits in the amount of $1,190.63 pursuant to section 40 of the Schedule for services provided by Comprehensive Disability Management Inc.
The Applicant is entitled to supplementary medical benefits in the amount of $3,595.20 pursuant to section 36 of the Schedule for treatment provided by Therapeutic Massage Clinic plus interest.

Background:

At the time of the first motor vehicle accident Mrs. Sharma was 28 years old. She worked full-time at the Bank of Montreal as a teller and part-time at Sears as a sales clerk. On December 23, 1994, she was struck by a vehicle making a turn as she attempted to cross the road at an intersection. She suffered soft tissue injuries and what was later diagnosed as a tear to the glenoid labrum cartilage in her right shoulder. The glenoid labrum is the cartilage-like material which lines the socket part of the shoulder joint. State Farm concedes that the injury to the labrum was caused by the first motor vehicle accident. It does not concede that this injury was aggravated by the second accident. Over the next nine months Mrs. Sharma made three unsuccessful attempts to return to work at the bank. State Farm terminated income replacement benefits on May 17, 1996 on the basis of a multi-disciplinary disability assessment at a Designated Assessment Centre (DAC).

On August 27, 1996, three months after State Farm terminated income replacement benefits, Mrs. Sharma was involved in another motor vehicle accident while a passenger in a vehicle driven by her husband. Their vehicle was struck broadside on the passenger side at an intersection. Mrs. Sharma claims that this accident aggravated her injuries as well as causing back pain. State Farm recommenced weekly income replacement benefits. It terminated those benefits on December 31, 1996 on the basis of the finding of a medical/rehabilitation assessment at a Designated Assessment Centre. Mrs. Sharma did not elect a disability assessment at a Designated Assessment Centre.

Mrs. Sharma continued to complain of shoulder pain and underwent an arthroscopic investigation on May 2, 1997. During that surgery, Dr. Sattarian removed a frayed and torn piece of the glenoid labrum.

Mrs. Sharma started part-time work at Sears on August 17, 1999.

Essential tasks of employment:

Under section 7 of the Schedule, Mrs. Sharma is entitled to income replacement benefits if she suffered a substantial inability to perform the essential tasks of her employment.

As a senior bank teller, Mrs. Sharma worked 37.5 hours per week from 8:30 a.m. to 5:00 p.m., Monday to Friday. Her husband dropped her off at work and before the bank opened, Mrs. Sharma opened the vault and distributed cash boxes and stamping machines to the tellers. She retrieved and balanced night deposits. When the bank opened to the public, she served customers at a wicket. She handled cash and coins, balanced accounts and made entries on a computer. At times she went into the basement to search through boxes of documents to find information to correct mistakes. She had one hour for lunch and was required to stand for most of the day.

Two or three evenings a week, Mrs. Sharma went to her part-time job at Sears where she worked as a sales clerk in the lighting department. Normally, part-time workers started at 5:10 p.m., but Sears allowed Mrs. Sharma to start at 5:40 p.m. because it took her that long to get to work by bus. Mrs. Sharma worked until 9:40 p.m. She also worked some Saturdays and Sundays for a total of 12 to 20 hours per week at Sears. She greeted customers and demonstrated products. If a customer wanted to take a larger product, such as a lamp, with them, Mrs. Sharma would retrieve the product from the warehouse area. Mrs. Sharma covered the department by herself and had one 15-minute break on the evening shift. On weekends she had one half hour for lunch and another 15-minute break if she worked more than five hours.

Mrs. Sharma's supervisor from Sears testified and I received documentary evidence describing Mrs. Sharma's jobs. I find that an essential task of both jobs was constant walking and standing, sometimes as much as twelve hours a day. As well, I find that because Mrs. Sharma dealt with the public, she was constantly required to be pleasant and helpful.

Mrs. Sharma was promoted from part-time teller, at 30 hours per week, to full-time senior teller about three months before the first accident. At the same time, she complained to her family doctor, Dr. Dhalla, of fatigue, weight gain and depression. Dr. Dhalla noted that Mrs. Sharma worked 50 hours per week. Although Mrs. Sharma's employers were happy with her work before the first accident, I find it significant that as soon as she started working full-time at the bank, Mrs. Sharma complained of fatigue and Dr. Dhalla noted her hours of work. I find that at the time of the accident, Mrs. Sharma worked with difficulty because of the constant standing and walking required of two jobs. Therefore, in determining whether Mrs. Sharma could perform the essential tasks of her employment, I find that Mrs. Sharma meets the test when she can perform those tasks with difficulty.

Injuries:

In the first accident, Mrs. Sharma was struck on the left side. Her glasses and one shoe flew off as she fell on her right side. She was treated in the hospital and released that night. Some of her injuries resolved, however, she continued to complain of pain in her right shoulder, right side of the neck and right arm as well as swelling in the right hand. On her trial work periods, her most serious complaint was pain in her right arm and shoulder.

Mrs. Sharma complained that the second motor vehicle accident aggravated her initial injuries and caused new soft tissue injuries to her back.

Initially, Mrs. Sharma had two family doctors. Dr. A. Dhalla was her regular family doctor. However, she saw Dr. R. Tanzer in the emergency department of the hospital and continued to see him after the accident. Dr. Dhalla referred Mrs. Sharma to a physiatrist, Dr. A. Kachooie, who had, by December 1997, exhausted all conservative treatment and referred Mrs. Sharma to an orthopaedic surgeon, Dr. J. Sattarian. Dr. Sattarian performed arthroscopic surgery on May 2, 1997. He found that the front portion of the glenoid labrum had been traumatized and he surgically removed the frayed segments of cartilage.

Mrs. Sharma also suffered emotional difficulties. Dr. Dhalla noted that Mrs. Sharma was depressed just before the first accident. After that accident, she became more depressed and anxious because she was not working. Her self-esteem deteriorated because she did not like to admit that she was not working and she stopped entertaining friends at home. She was also depressed because her shoulder pain did not improve and because she had marital difficulties.

Disability up to second motor vehicle accident:

State Farm terminated income replacement benefits on the basis of the opinions of Dr. L. Weisleder and Dr. G. Lloyd, both orthopaedic surgeons, that they could find no organic pathology and that Mrs. Sharma was not disabled from work. This opinion was confirmed by the assessors at the disability DAC who, although they noted Mrs. Sharma's complaints of worsening pain with repetitive use of the right arm, found that her pain behaviours and guarded movements were the main limitations in her physical abilities.

Mrs. Sharma consistently reported pain in her right shoulder, particularly with repetitive movement of the right arm, up to the date of the second accident. Dr. Kachooie and Dr. Tanzer opined that Mrs. Sharma could not do repetitive movement with the right arm up to the time of the second accident. The subsequent arthroscopic surgery confirmed that Mrs. Sharma had an injured shoulder.

The first accident occurred on the evening prior to the Christmas vacation and Mrs. Sharma attempted to return to work the first business day after the Christmas vacation. She worked at the bank on a part-time trial basis for ten weeks from February to April 1995. Her supervisor asked her to go home when she could not work full-time hours at the end of the ten weeks. She worked at the bank on a part-time trial basis for a further ten weeks from September to November 1995 but stopped when she could not work full-time hours.

I find that Mrs. Sharma was motivated to return to work and that she would have returned to the bank before the second accident if she was physically able. I find that she was disabled from performing the essential tasks of her occupation on account of injuries she sustained in the first motor vehicle accident from the date State Farm terminated benefits, May 17, 1996, to the date of the second accident, August 27, 1996.

State Farm recommenced weekly income replacement benefits one week after the second motor vehicle accident. I find it likely that Mrs. Sharma's disability would have continued for that extra week until September 2, 1996.

Disability after second motor vehicle accident of August 27, 1996:

Mrs. Sharma claimed that her shoulder and arm injuries were aggravated in the second accident and that she developed new back pain. State Farm paid weekly income replacement benefits until December 31, 1996 when it terminated them on the basis of a medical and rehabilitation DAC. Although not asked to do so, the assessors commented that Mrs. Sharma met most of the demands for the teller and sales clerk positions. Mrs. Sharma did not elect a disability assessment at a DAC.

Mrs. Sharma claimed that she was feeling worse in the autumn of 1996. She testified that her pain was increasing and she was more depressed. She was losing hope, becoming more angry and worrying that she might never work again.

At the DAC disability assessment before the second accident, in April 1996, Dr. Koepfler, a psychologist, reported that Mrs. Sharma's depression was not disabling. At the medical/rehabilitation DAC after the second accident in November 1996, Dr. Julie Hill, a psychologist, administered one of the tests which Dr. Koepfler had administered six months earlier. Dr. Hill noted that whereas the earlier test suggested significant anxiety and moderate depression, it was not of clinical significance. However, the later test suggested clinically significant depression and that Mrs. Sharma had a "major depressive disorder." In June 1998, Dr. Dhalla referred Mrs. Sharma to Dr. H. Sahyoun, a psychiatrist. Dr. Sahyoun continues to treat Mrs. Sharma. In his report dated June 2, 1999, he noted that he had treated her for one year for a major depression using anti-depressant medication. After trying various antidepressants with little success he found that she responded well to Trazadone. He also found that she was motivated to return to work.

The opinion that Mrs. Sharma suffered from a major depressive disorder as late as May 12, 1999 is uncontradicted and is consistent with the testimony of Mrs. and Mr. Sharma and I accept it.

In September 1997, Dr. Sattarian reported that although the torn and frayed labrum was surgically repaired, Mrs. Sharma continued to complain of pain, that she had spasms in the trapezius muscles, that abduction of the arm beyond 90 degrees was painful and that the shoulder pain was aggravated with any repetitive work involving the right shoulder. He reported:

She has difficulty with repetitive movement of the right shoulder, holding the shoulder in one position for any extended period of time, raising the arm above the shoulder level and she has disability in respect with holding things with the right upper extremity . . . Recovery is guarded.

Although Dr. Lloyd, an orthopaedic surgeon, testified that Mrs. Sharma's injury was not disabling and that it only caused some discomfort when Mrs. Sharma used her right shoulder at extremes of abduction, I prefer the opinion of Dr. Sattarian. He saw the injured tissue and had a better understanding of Mrs. Sharma as a patient. I therefore find that Mrs. Sharma continued to have difficulty with repetitive movement of the right shoulder after State Farm terminated income replacement benefits.

Mrs. Sharma started applying for sedentary jobs in 1998. She started applying for full-time jobs in 1999. She testified that she re-applied at the bank at the beginning of 1999. She also applied for a job as a supervisor at Shoppers Drug Mart and as a head cashier at a discount department store. She also applied at Sears. She did not obtain employment and became depressed. In July 1999, she started applying again and found work as a sales clerk, 12 to 15 hours per week, at Sears. She started on August 17, 1999 and has won a prize for sales.

I find that Mrs. Sharma was a credible witness and motivated to return to work. She made three unsuccessful attempts to return to work at the bank. She has tried to improve her condition. She walks regularly to condition herself, she exercises her shoulder regularly to improve function and she underwent general anaesthesia and an operation in the hope that it would improve her condition. She has tried to find employment.

At the time of the first accident, Mrs. Sharma had worked at a full-time job and a part-time job for three months. Dr. Dhalla noted that she was depressed and tired as a result of working 50 hours per week. I find that Mrs. Sharma was just coping at the time of the first accident.

Dr. Sahyoun last saw Mrs. Sharma on May 12, 1999. He reported:

To date, she [is] coping and she has had ongoing difficulty dealing with her chronic pain syndrome and mostly her physical limitations with her right shoulder. Should she continue to respond favourably to her antidepressant, the prognosis should improve in relation to a very slow rehabilitation.

I find that Mrs. Sharma was disabled as a result of her shoulder injury and a major depressive disorder. However, in early 1999 she started looking for full-time employment and Dr. Sahyoun thought she was coping. I find that she was close to her pre-accident condition and able to perform the essential tasks of her employment on May 12, 1999, when Dr. Sahyoun reported that she was coping.

Causation:

State Farm argued that if Mrs. Sharma was disabled by depression, her depression was caused by marital issues unrelated to the accident. Dr. Koepfler reported, with respect to the first accident, that by all accounts the client functioned successfully for several years prior to her accident, leading one to assume her present problems are accident-related and further complicated by her husband's accident." Mrs. Sharma admitted that she had emotional stresses before and after the accident which were not caused by the accident. However, she said she could have dealt with other problems if she had not been injured in two motor vehicle accidents. I accept her evidence and find that the injuries she sustained in the motor vehicle accidents significantly contributed to her inability to perform the essential tasks of her employment.

Mrs. Sharma is therefore entitled to income replacement benefits for the period May 18, 1996 to September 2, 1996 and for the period January 1, 1997 to May 12, 1999.

Supplementary medical benefits:

Acupuncture and laser therapy:

State Farm refused to pay for 70 acupuncture and laser therapy treatments Dr. Rad provided to Mrs. Sharma between June 3, 1996 and November 27, 1996. Dr. Rad charged $50 per treatment. Mrs. Sharma did not testify as to any benefit she received from this treatment other than it helped." Dr. Rad testified, however, he did not bring his notes. He said that Mrs. Sharma continued to benefit from his treatment, however, he did not realize that she was set back by the second motor vehicle accident. He said he would continue to treat Mrs. Sharma as long as State Farm paid. I do not find the expense for acupuncture treatment reasonable and I award nothing for acupuncture.

Comprehensive Disability Management:

Mrs. Sharma testified that Comprehensive Disability Management told her how to lift and carry and lay on her back and divide housework. Other than a collection letter from a lawyer, I have no other evidence of what they did. I do not find the amount of $1,190 claimed in the collection letter a reasonable rehabilitation expense.

Therapeutic Massage Clinic:

Mrs. Sharma received 48 massage treatments, at $74.90 each, in January, February, March and April 1997 which State Farm refused to pay. Mrs. Sharma said that the massage relieved tension and helped her sleep. She submitted a number of invoices which indicated that she paid for 16 massage treatments at $10 each in 1998 and 1999. She said she could not afford to take more. I heard no evidence to explain the difference in the cost. The medical/rehabilitation DAC reported on November 27, 1996 that "Other passive therapy to treat the right shoulder dysfunction should be utilized, including supervised range of motion exercises, stretching and manipulation." I find that massage treatment was a reasonable and necessary medical expense.

EXPENSES:

If the parties cannot agree on the issue of entitlement to issues of the arbitration proceeding, they may make written submissions to me within 60 days of the date of this decision.

November 10, 1999

William J. Renahan Arbitrator

Date