Neutral Citation: 1999 ONFSCDRS 228

FSCO A97-002035

BETWEEN:

ROMA WROBEL

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

June 2, 3, July 14, 15, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Frank A. Sabetti for Ms. Wrobel

J. Lynne Frank for Liberty Mutual Insurance Company

The Applicant, Roma Wrobel, was injured in a motor vehicle accident on June 22, 1995. She applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ On July 3, 1996, Liberty Mutual terminated disability benefits and refused to pay her physiotherapy bills. After mediation failed, Ms. Wrobel 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 Ms. Wrobel entitled to weekly disability benefits under section 7 of the Schedule after July 3, 1996?
Is Liberty Mutual entitled to deduct any post-accident income from Ms. Wrobel's weekly disability benefits?
Is Ms. Wrobel entitled to reimbursement for physiotherapy treatment from November 1997 through May 1998 under section 36 of the Schedule?

Ms. Wrobel is entitled to income replacement benefits ongoing from July 3, 1996 under section 7 of the Schedule.
Liberty Mutual is not entitled to deduct any post-accident income from Ms. Wrobel's weekly disability benefits.
Ms. Wrobel is entitled to reimbursement for her November 1997 physiotherapy treatment under section 36 of the Schedule.

Roma Wrobel, fifty-nine years old at the time of the accident, lived with her daughter, son-in-law and her teenage granddaughter in a three-bedroom home in Toronto. She took medication for hypertension, but was otherwise in reasonably good health at the time of the accident. On June 22, 1995, Ms. Wrobel was crossing Sheppard Avenue in Toronto when she was knocked down by a passing car. She lost consciousness briefly after being struck on her left side, and was taken by ambulance to hospital. Ms. Wrobel was released from the emergency room, receiving stitches to both elbows and a removable cast on her swollen left knee. Treatment has not relieved her complaints of bilateral knee pain, low back and hip pain, which she claims render her incapable of resuming her pre-accident employment cleaning offices.

Injuries:

The evidence supports Ms. Wrobel's claim that her right knee pain is accident-related. Although Ms. Wrobel stated that pain in her right knee did not commence until two months post-accident, radiology imaging from 1996 confirms that both Ms. Wrobel's knees sustained soft tissue damage in the accident, consistent with her claim. The left knee trauma healed, but there was evidence of swelling, a bone flake and a cyst.

Dr. Rod Davey, a knee specialist at the Toronto Hospital, diagnosed tendinitis in November 1996, suggesting that Ms. Wrobel continue with physiotherapy and remain active. There is no evidence of neurologic pathology or surgery recommendation. Based on the mechanics of Ms. Wrobel's injury, the proximate onset of symptoms and radiology reports, I am satisfied that her left and right knee and right hip pain result from the accident.

Job Duties:

Before the accident, Ms. Wrobel worked four and a half hours a day, Monday to Friday, cleaning the seventh floor of an office building in Toronto. She vacuumed, wiped desks and office equipment and pushed a rolling cart around the floor to collect garbage and clean the washrooms.

Ms. Wrobel, a chemist in her native Poland before emigrating to Canada in 1990, stated she never worked at physical labour before beginning her office cleaning job about nine months before the accident. Although she stated that the work was "heavy," Ms. Wrobel did not operate mechanical equipment or move heavy items on this job.

The evidence does not support Mrs. Wrobel's contention that her job was heavy. On the contrary, her employer reported she was a "light duty cleaner," the defined physical demands of an industrial cleaner and janitor also indicate the work is light or medium/light,² and Ms. Wrobel's own written statement of her duties does not support her view.

I accept that Ms. Wrobel's duties are either light or medium/light work, and that she frequently needed to push/pull, bend/squat and reach. I find that Ms. Wrobel's duties consist of vacuuming and dusting the offices, cleaning the washrooms and kitchenette, collecting and removing rubbish from the baskets.

Oral Evidence:

According to Ms. Wrobel's testimony, her upper back and neck pain has greatly resolved, and her main problem in resuming work continues to be pain in both knees, right hip and low back. Ms. Wrobel testified that her left knee feels like it is pulling, and is worse than her right knee and hip. She cannot bend over or squat. Functionally, Ms. Wrobel states that she uses a rail bar to enter and exit the bathtub, but otherwise she is independent with personal and hygiene needs.

Ms. Wrobel's daughter, Lucy Feherpataky, testified that her mother dusts and can walk a short distance, but does no other housekeeping. Her testimony that her mother cannot cook at all and only dusts conflicts with Ms. Wrobel's statements to health care experts. Lucy's husband, George Feherpataky, denied seeing his mother-in-law doing any household chores after the accident, but stated that she took care of the couple's teenage daughter.

Mrs. Feherpataky has worked full time as a real estate agent since November 1998, and Mr. Feherpataky sells and repairs office machines. Considering he works full time, it is clear to me that Mr. Feherpataky has not been able to observe what Ms. Wrobel does during the day. He also did not identify why and what was required of his mother-in-law to take care of his teenage daughter. Mrs. Feherpataky's evidence that Ms. Wrobel only dusts conflicts with her mother's admitted chores. Accordingly, their evidence is unreliable.

Medical:

Ms. Wrobel has resumed many housekeeping chores since the accident. She told WORKABLE Centres Inc. ("WORKABLEduring a functional assessment in April 1996 that she was vacuuming, dusting, cooking, making beds, washing dishes, cleaning the kitchen and bathrooms at her home. In May 1996, she also told her treating physiotherapist that she was doing some vacuuming, cooking and shopping. Her evidence at the hearing was that she cleans the house, but does not wash floors or stairs, scrub the bathroom and kitchen fixtures because of her knee, low back and hip pain.

Ms. Wrobel was unable to perform many household activities during a functional evaluation. At the April 1996 assessment by WORKABLE, Ms. Wrobel stopped dishwashing, ironing and folding clothes, mopping and did not attempt bathroom cleaning at all. She sat for 80 minutes during the interview, but severely underestimated her sitting tolerance at 30 minutes in response to questions. Ms. Wrobel did not explain to me why she was unable to perform these activities during the work simulation or the conflict between her sitting tolerance estimate and demonstrated ability.

Dr. Emil Orsini examined her at WORKABLE, finding Ms. Wrobel could resume her previous activity. The occupational therapist and physiotherapist at WORKABLE deemed her capable of resuming work activities only at light duties and if she can pace herself. Finally Dr. R. Allen provides a summary conclusion, which essentially rejects Ms. Wrobel's claims on the basis of "no objective evidence." These two physicians do not address Dr. Davey's findings of tendinitis, and Ms. Wrobel's resulting pain in relation to her job duties. Neither therapist specifically says Ms. Wrobel can perform her job duties, and or deal with her specific limitations. Consequently, I do not rely on WORKABLE's opinions.

In July 1996 Ms. Wrobel's treatment needs were evaluated by the North York Rehabilitation Centre Inc. (Designated Assessment Centre). Ms. Andrea Atkins, the physiotherapist, testified that Ms. Wrobel's neck was restricted while she stood upright, but moved freely in the prone position during the examination. She could hyperextend her back while lying down, and was quite restricted bending over from a standing position. The examining physician, Dr. Edward English, found no nerve irritation to explain her sciatic pain. She moved her hips both directions 90 degrees sitting, yet only 40 degrees lying down. Ms. Wrobel's knees had no swelling or instability, the ligaments felt normal. Dr. English did not render a disability opinion, but he felt the test results do not reflect Ms. Wrobel's maximum capabilities.

In May 1997, Ms. Wrobel profiled herself as severely disabled at the Accident Injury Assessment Centre. Her main difficulties were left leg and low back pain. Consistent with her presentation, Ms. Wrobel's hips moved about forty percent of normal and she was able to bend from her waist approximately fifty percent. Her grip strength was inconsistent, but upper body mechanics and strength seemed fairly good. Her standing tolerance was ten minutes. Dr. Z.

Marciniak predicated his opinion on her limited ability to stand. His view was that Ms. Wrobel could not vacuum extensively, bend or crouch.

Ms. Wrobel's family physician issued two brief reports in October 1997. Reviewing the radiology reports, Dr. Danuta Pawlowska identified Ms. Wrobel's general injuries, and concluded that she could not vacuum extensively or bend repetitively. Dr. Pawlowska's opinion is not based on any functional evaluation nor do her reports provide any analysis as a basis for her conclusions. I accept her opinion only in the context of Ms. Wrobel's other experts.

Dr. D.J. Ogilvie-Harris, an orthopaedic specialist, examined Ms. Wrobel in January 1998, finding she had a degenerated meniscus (cartilage at the knee joint), chondromalacia of the patella (softening of the kneecap cartilage), a bone flake and cyst of the left knee joint. Based on his review of the two functional evaluations, he accepted she could perform most household activities, but would be unable to stand for any prolonged period, kneel, bend or squat at her job.

Dr. Ogilvie-Harris's opinion provides a balanced analytical view of her knees. He reviewed Ms. Wrobel's injuries and the radiology reports along with the two functional evaluations. He did not merely accept Ms. Wrobel's performance or her self-profile, concluding that she is able to perform most household functions independently. Dr. Ogilvie-Harris makes the key point that she cannot extensively walk, stand, kneel or bend due to her objective knee injuries. I agree with his view and rely on Dr. Ogilvie-Harris, as well as Dr. Marciniak's opinion.

Disability Analysis:

While the medical opinions in this case may be clouded by Ms. Wrobel's exaggeration of her disability, it is clear that she sustained damage to the cartilage in both knees. A bone flake and cyst remain in the left one. While the damaged cartilage has healed, the radiology reports and unrefuted evidence of Dr. Davey establish that Ms. Wrobel suffers continuing tendinitis.

There is no doubt in my mind that Ms. Wrobel, a late middle-aged woman, would develop some degree of residual pain from this condition. The functional evaluations establish that Ms. Wrobel has reasonably good upper body movement and strength, and she can bend over fifty percent of normal. She is dusting, cleaning bathroom and kitchen fixtures, cooking, making beds and vacuuming at home. Considering that she exaggerates her disability, Ms. Wrobel has not established she is unable to push the cart around the office floor, pickup rubbish, wipe desks, cabinets and bathroom fixtures after the termination date.

However, it is Ms. Wrobel's tendinitis in her knees which concerned Dr. Ogilvie-Harris, upon whom I rely. Other examiners also report Ms. Wrobel has a slight left limp and occasional joint swelling with activity.

Even if Ms. Wrobel dramatically understates her activity tolerances during interviews (standing tolerance ten to thirty minutes, walking one quarter mile to one kilometre, no activity over one hour), her cleaning job requires continuous standing and repetitive bending for four to five hours every weekday. Unlike Ms. Wrobel's household chores, she cannot sit down on the job, take extensive breaks to relieve the tendinitis or get help to clean her assigned floor of the office building.

To be entitled to income replacement benefits under section 7 of the Schedule, Ms. Wrobel must prove on a balance of probabilities that she suffers a substantial inability to perform the essential tasks of her office cleaning job. Based on her own evidence and Dr. Ogilvie-Harris' opinion, together with the fact that there is no outside housekeeping/cooking assistance in this workaday family home, I am convinced that Ms. Wrobel can perform most household activities with breaks. However, I agree with Dr. Ogilvie-Harris, and find that she cannot stand, walk or vacuum for extensive periods of time. These being requirements of Ms. Wrobel's main job functions, I find she has continuously suffered a substantial inability to perform the essential tasks of her office cleaning job, and is accordingly entitled to ongoing income replacement benefits.

Post-Accident Income:

Ms. Wrobel worked for and reported income to Revenue Canada from her son-in-law's business during 1996 and 1997. Liberty Mutual argues it was entitled to deduct these earnings from her income replacement benefits.³ Apparently, the company did not know about its potential overpayment claim until the dispute reached arbitration.

When Ms. Wrobel's 1996 and 1997 income tax return and assessment notices were put to her at the hearing, she denied receiving the $5,500 and $6,000 earnings shown as "other income.' She admitted organizing paperwork for Mr. Feherpataky's office equipment company, which operates out of the family home, and receiving small sums of spending money.

George Feherpataky handled the office machine business. He testified that he never paid his mother-in-law by cash or cheque. He gave her spending money, paid her bills and Ms. Wrobel took care of the household.

I am not convinced that Ms. Wrobel received any monetary benefit from the income-splitting arrangement. First, I accept Mr. Feherpataky's evidence that he acted on advice of his accountant and never gave Ms. Wrobel significant cash or any cheques for her work. Secondly, the Feherpatakys have basically taken care of Ms. Wrobel's expenses since she arrived from Poland in 1990.

Revenue Canada may question Mr. Feherpataky's practice, however the evidence is consistent that Ms. Wrobel was not paid for her services, and there are no cheques, receipts or documentation to prove otherwise. With no evidence but her tax reporting, I am not persuaded Ms. Wrobel either received or had the reported income available to her. I find Ms. Wrobel has no post-accident income in 1996 or 1997 which is deductible from her disability benefits under the Schedule.

Physiotherapy Treatment:

I am not convinced that Ms. Wrobel's entire $4,940 treatment at Sports Medicine and Rehabilitation Clinic ("Sports Medicine") was necessary or reasonable. Apparently, on referral from Dr. Davey, she attended 13 and 14 sessions in November and December 1997; 12 in January 1998; 9 each in February, March and April 1998; and 10 in May 1998. I was not provided with any progress reports, treatment records, clinician's notes or the clinic's discharge summary.

Before this treatment began, evaluators at the North York Rehabilitation Centre found Ms. Wrobel's recovery progress had plateaued after her initial physiotherapy treatment ended. Finally, Ms. Wrobel told me that the cold packs Sports Medicine put on her knees helped, but otherwise she failed to give me any evidence that the clinic's treatment assisted her.

On balance, it was initially reasonable for Ms. Wrobel to attend at Sports Medicine on Dr. Davey's recommendation. However, given that she had ceased to progress, I find that seven months of regular physiotherapy sessions without any indication of its effectiveness is not reasonable. I am prepared to award Mrs. Wrobel reimbursement for the first month of treatment, finding that the remainder of her expenses at Sports Medicine clinic were not reasonable or necessary. I am unable to determine the amount of the non-OHIP covered services for November 1997.

EXPENSES:

This case was presented in an efficient manner, and I would be prepared to award Ms. Wrobel her expenses of the arbitration process, subject to the parties' submissions, if they cannot agree.

November 24, 1999

Fred Sampliner Arbitrator

Date