Patricia Hill v. Wawanesa Mutual Insurance Company, 1999 ONFSCDRS 231

FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 1999 ONFSCDRS 231 FSCO A98-001113

BETWEEN:

PATRICIA HILL Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: David Leitch Heard: August 9, 10, 11 and 12, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto. Appearances: Robert Ipacs for Ms. Hill Donald G. Cormack for Wawanesa Mutual Insurance Company

Issue:

The Applicant, Patricia Hill, was injured in a motor vehicle accident on January 13, 1995. Since July 1997, she has been in receipt of loss of earning capacity benefits in the amount of $25.93 per week payable by Wawanesa Insurance Company ("Wawanesa") under the Schedule¹. Though the parties agree on the determination of Ms. Hill's pre-accident earning capacity, they have been unable to resolve a dispute about the determination of her residual earning capacity. Ms. Hill applied for arbitration at the Financial Services Commission of Ontario ("the Commission") under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. What is Ms. Hill's residual earning capacity?

Result:

1. Ms. Hill has a residual earning capacity of zero.

Introduction:

On January 13, 1995, Ms. Hill was driving her 1985 Dodge Lancer when it was struck from the side, forced into oncoming traffic, and struck a second time. Ms. Hill hit her left knee on the window handle and was taken by ambulance to a hospital complaining of chest tightness. Soon afterward, her family doctor diagnosed neck and right shoulder sprains. However, it is primarily the psychological injuries caused by the accident which, in Ms. Hill's submission, have reduced her residual earning capacity to zero. Wawanesa relies on the report of a Residual Earning Capacity Designated Assessment Centre (RECDAC) in support of its submission that, while Ms. Hill may not be capable of returning to her job as a self-employed cleaning lady, she is capable of returning to a general office clerical job on a part-time basis.

The law:

Determining Residual Earning Capacity

30.-(1) For the purpose of this Part, the residual earning capacity of a person shall be deemed to be the net weekly income determined in accordance with section 81 or 82 using the gross annual income that the person could earn from the type of employment that best satisfies the criteria set out in subsection (2).

(2) The criteria referred to in subsection (1) are:

1. The person,

i. is able and qualified to perform the essential tasks of the employment, or

ii. would be able and qualified to perform the essential tasks of the employment if the person had not refused to obtain treatment or participate in rehabilitation that was reasonable, available and necessary to permit the person to engage in the employment.

2. The employment exists in the area in which the person lives and is accessible to the person.

3. It would be reasonable to expect the person to engage in the employment having regard to the possibility of deterioration in the person's impairment and to the person's personal and vocational characteristics.

(3) For the purpose of subsection (2), a person is able and qualified to perform the essential tasks of an employment if,

(a) the person does not have any impairment that permanently prevents the person from performing those tasks; and

(b) the person has the job skills and any licence or other credentials required to perform those tasks, or could obtain those skills and the licence or credentials without significant effort.

The Evidence:

Ms. Hill testified that, prior to the accident, she had no serious accidents or illnesses prior to the accident, that she had been "fun to be around" and that she had engaged in hobbies including travelling, cycling, painting, card-playing and various crafts. She had not seen a psychiatrist for any reason.

She testified that the accident changed her life. During the accident, Ms. Hill believed she was going to die. Afterwards, she found she could not sleep and started to lose her interests and her desire to be around people, preferring to stay by herself. She began to see a psychiatrist in early March 1995. She did not feel comfortable with him and was referred to Dr. Kiran Mantro in November 1995. Dr. Mantro's first report back to the family doctor, dated January 8, 1996, reads, in part, as follows:

This 42 year old divorced female, mother of one daughter, was seen on your kind referral.

Patricia was in tears when talking about the difficulties she had since she met with the motor vehicle accident in January 1995. She mentioned that as a result of this accident, her life changed completely as she is incapacitated to continue working. She is experiencing a lot of pain in the shoulder area, back of her neck, chest and knees. Inspite of physiotherapy and taking pain medication, Tylenol and Aspirin she "does not feel any better and continues to have headaches and sore body". She has developed a fear for driving and does not trust people in general.

Mrs. Hill described having sleep difficulties, waking up in the middle of the night and not being able to go back to sleep. She also has a poor appetite and tries not to think about it but feels "angry inside". She feels no motivation to do things and remains withdrawn with poor socialization.

My working diagnosis is that Mrs. Hill is depressed as is evident from the emotional lability and abnormality of the vegetative symptomatology. I have started her on Paxil 20 mg OD, but she certainly needs psychotherapy to develop strategies to cope with the ongoing stresses. I will continue to provide the follow-up.

Ms. Hill was examined by Dr. Michael Schwartz, a psychologist at a Disability Designated Assessment Centre (Disability DAC) in November 1995. Dr. Schwartz concluded:

The data indicate that Ms. Hill is experiencing very high levels of acute depression and anxiety suggesting that psychological recovery has not taken place since the MVA. Her anxiety is at the level of a phobic state, involving irrational fears about the "outside world" being potentially injurious to her and her body. Her anxiety levels are also interfering with cognition and therefore there is potential for disordered thinking especially around her body and what has "been done to it". Since this sort of anxiety appears in the data to be reactive, it is likely that it is directly related to her being hurt in the accident. The data also show that she is depressed causing low energy and activity levels, and her usual defences are insufficient to contain the high anxiety. Her only "defence" or guard against her massive fears is avoidance and withdrawal which she recounted in the interview noted above.

Her psychiatrist can evaluate the need for psychopharmacology, the use of which can further confirm the presence of high levels of anxiety and depression as these symptoms can be treated with noticeable improvement with medication within 3 to 6 months. A psychological re-assessment at that time can indicate whether or not symptom management has occurred from a psychometric perspective to the extent of functional restoration.

According to the current date, the accident of January 13, 1995 has caused a Post-Traumatic Stress Disorder in Ms. Hill to the point of psychological disability.

Ms. Hill's condition did not improve. She was examined at another Disability DAC in early 1997 by Dr. Robert Notkin, a psychiatrist. In this report dated February 4, 1997, Dr. Notkin concluded:

In summary, Ms Hill is just beyond the two year mark post motor vehicle accident. Clearly the main issue in this woman is her Major Depressive Episode. According to the documentation on the file, there would be no reason to suspect any pre-existing history of a Major Depressive Episode.

Based upon what this woman describes, in the months following the motor vehicle accident, she began to develop a Major Depressive Episode that has gradually worsened over time. It appears that the little she has had in the way of anti-depressant treatment has made little in roads into treating her Major Depressive Episode. She still presents today as a severely depressed woman who has not recovered. From a psychiatric point of view, I continue to find her substantially unable to perform her former employment activities.

[Emphasis added]

However, 104 weeks after the accident, Ms. Hill's inability to return to "her former employment activities" ceased to be the test of her continued eligibility to benefits. At that point, Wawanesa was entitled to and did reconsider Ms. Hill's entitlement in accordance with Part VI of the Schedule dealing with loss of earning capacity benefits. By letter dated February 28, 1997, Wawanesa informed Ms. Hill of its view that her entitlement to loss of earning capacity benefits was zero because her residual earning capacity was greater than her pre-accident earning capacity. As mentioned at the outset, there is no dispute between the parties about Ms. Hill's pre-accident earning capacity. The letter stated that amount to be $259.29 per week. The letter further stated Wawanesa's view that Ms. Hill's residual earning capacity was $280.00 per week based on employment as a "mailroom clerk/clerical assistant." By letter dated March 17, 1997, Ms. Hill's representative replied to Wawanesa, stating his belief that Ms. Hill's residual earning capacity was zero. In accordance with the dispute resolution procedure created by Part VI of the Schedule, a RECDAC assessment was then arranged and conducted in late May and early June 1997.

The RECDAC report consists of reports by Dr. Irving N. Grosfield, an orthopaedic surgeon, Dr. Michael Schwartz, the same psychologist who had conducted a Disability DAC in November 1995, Anna Marie Sneath, a physiotherapist, and Ruth Yundt, an occupational therapist. Ms. Hill did not challenge Dr. Schwartz's testimony that neither the Commission nor Ms. Hill objected to his conducting a second DAC, though both were given the opportunity to do so. However, at the submission stage of the hearing, after the evidence of both parties had been submitted, Ms. Hill's counsel argued that I should "throw out" or ignore the RECDAC report because Dr. Grosfield had violated the Commission's General Guideline 4 of the Minister's Committee on the Designated Assessment Centre System, January, 1999, which reads, in part, as follows:

If the matter is not resolved after the DAC assessment, and the matter continues to arbitration or court, the DAC assessor may have to testify. This assessor must remain and appear to remain neutral. This objective cannot be met if the assessor has provided/performed post-DAC treatment, a medical-legal assessment or an Insurer Examination at the request of one of the parties. Please note this applies to all post-DAC medical-legal assessments whether the request is to conduct a paper review and/or an actual examination.

Counsel noted that this Guideline was published in January 1999. He submitted that Dr. Grosfield violated it on March 12, 1999 when he examined Ms. Hill for treatment purposes in the fracture clinic of the Scarborough General Hospital.² This consultation may well have violated the Guideline but it does not, on the facts of this case, constitute a reason for excluding the entire RECDAC report from the evidence. Even if the consultation casts doubt on the neutrality of Dr. Grosfield's opinion (and I make no finding in this regard), Ms. Hill did not challenge his opinion, but rather the opinions of Dr. Schwartz regarding the psychological effects of the accident and Ruth Yundt regarding the results of the work simulation conducted at the RECDAC. I am prepared to accept the opinions of Dr. Schwartz and Ms. Yundt because Dr. Grosfield's consultation note does not compromise their neutrality. I note as well that Ms. Hill did not, either before or during the evidence-taking part of the hearing, notify Wawanesa of her objection concerning Dr. Grosfield's involvement in the RECDAC process. Wawanesa would have clearly been prejudiced by the exclusion of the RECDAC report.

The RECDAC report

Ruth Yundt's report states that the work simulation was conducted to determine whether Ms. Hill:

• has the physical ability to meet the job demands of the identified positions.
• has the tolerance to engage in full time work as demonstrated by participation in simulated work activities for five consecutive 7.0 hour days.
• is able to achieve and sustain average work quality and productivity standards.
• has the ability to cope with the physical and mental demands required for preparing for work, travelling to/from worksite and for basic job tasks.
• demonstrates appropriate work behaviours.

The work simulation was conducted in connection with two job classifications: light duty cleaner and general office clerk. Ms. Yundt's report justified these selections in the following terms:

The team's psychology staff identified the client as being severely depressed and emphasized the impact that the depression would have on client's performance in work activities. In terms of identifying a job compatible with client's level of intelligence, aptitudes, interests and psychological profile several NOC codes were selected and from these the two viewed as being most suitable for testing during the situational assessment week were NOC code #6661 and NOC code #1421.

With respect to Ms. Hill's attendance at the work simulation, Ms. Yundt reported that on the first day, Ms. Hill left the RECDAC at midday due to an "apparent emotional crisis" involving "a lengthy episode of crying, discouraging and desperate statements from client (eg. 'I can't do anything anymore' 'I just want to go away') and an eventual need for assistance from team psychological practitioners." On the second day, Ms. Hill left the site 1 1/2 hours early after becoming "quite anxious, exhibiting fatigue and a similar emotional response as on the first day." Ms. Hill did not attend the third day of the work simulation citing her "fatigue, and feelings of distress related to her current situation." Ms. Hill arrived late on the fourth day, having overslept. No specific comment was made in connection with the fifth and last day of the work simulation.

With respect to Ms. Hill's performance of the two jobs selected for the work simulation, the RECDAC report contains the following "team" conclusion:

Based on assessments completed and client's performance during the situational assessment week, it is the team's findings that client is unable to manage the demands of the pre-accident job of light duty cleaner even on a part-time basis. Client's apparent depression, decreased physical tolerance and client's extreme anxiety and emotional reaction to the job responsibilities of a cleaner all contributed to the team's decision.

The client however did demonstrate that she could manage (both mentally and physically) the job demands of alternate position of General Office Clerk - NOC Code #1411 on a part-time basis.

The conclusion that Ms. Hill was only capable of performing the general office clerk job on a part-time basis was explained in the following portion of Dr. Schwartz's report:

The personality test data indicate a major depression as well as highly elevated levels of anxiety to the extent of phobic reactivity. She does not appear to have significantly improved psychologically since the previous assessment of November 1995. Although recommendations are beyond the scope of this assessment, a medication review by her psychiatrist seems warranted to try and lower both the depression and highly elevated levels of anxiety.

From the perspective of these data it would appear that Ms. Hill is psychiatrically disabled from working on a full-time basis. The work simulation week supports this conclusion. From an empirical perspective, she was not able to work a full-week, and at one point became extremely distressed such that the occupational therapist questioned the presence of suicidal intent and these writers were notified to intervene.

The data are less clear on whether or not she could currently work on a part-time basis over time without further treatment. Again from a empirical perspective, it appears that she is able to exert sustained effort for short periods of time. For example, she worked diligently and purposefully on the psychological tests and event scored well on a psychomotor task that is particularly sensitive to depression. Her history also shows an ability to sustain herself for some period of time as when she was involved in a structured program such as the Day Treatment program at the Grace Hospital or the educational program at Seneca College. It is unknown to what extent she could continue to "push" herself to maintain a prolonged period of employment even on a part-time basis. This may only be able to be determined by an attempt at part-time employment and Ms. Hill should be tried at this.

In his oral testimony, Dr. Schwartz stated that it was not unusual for subjects to miss time during work simulations as they have typically been out of the workplace for some time due to health problems. What is important, he maintained, is to obtain a representative sample of the subject's ability to do the job and, in his experience, it is not out of the ordinary to obtain such a sample from a single day's job performance. Dr. Schwartz's opinion was that in Ms. Hill's case the sample obtained was sufficient to support the conclusion reached.

Reasons for rejecting the RECDAC report

First, I note that Dr. Schwartz was more cautious in his written opinion than in his oral testimony. In his written opinion, he stated that it was unknown whether Ms. Hill could maintain a prolonged period of employment even on a part-time basis.

Second, the RECDAC conclusion was not accepted by Ms. Hill's treating psychiatrist, Dr. Mantro, who provided the following opinion and summary in a letter March 23, 1999:

I find Ms. Hill going through severe depression, not only having emotional lability but also having overwhelming anxiety with loss of motivation, tired feeling. She is having a lot of difficulty with her concentration and memory. She is having "Hopelessness and helplessness". I disagree with the Occupational Therapy Assessment and this patient was capable of doing part time clinical [sic] work. She is totally disabled for any gainful employment due to the severity of her depression.

To summarize, since this patient met with a motor vehicle accident in January 1995, she had been showing deterioration in her functioning level. She has developed Major Depressive Disorder and as a result required many admissions to the Scarborough Grace Hospital. She is grieving over her losses; the loss of her productive role and the loss of her business of Maid Service since the accident has led to poor self-esteem and lack of confidence. The loss of both her parents had added on to the severity of depression.

Dr. Schwartz acknowledged that his own opinion was based on his examination in May/June 1997 while Dr. Mantro's opinion, based on ongoing treatment, confirmed that Ms. Hill had not improved and may not, in fact, be able to work.

Third, I am not satisfied that the work simulation effectively assessed Ms. Hill's clerical abilities. Ms. Hill testified that the only general office tasks she was asked to perform involved using the telephone once and photocopying documents and putting them in order. She stated that she was not asked to perform tasks related to filing or mailing though Ms. Yundt's report confirms that these are two of the expected tasks of a general office clerk. I note that Ms. Hill's evidence on these points was not contradicted as Ms. Yundt did not testify, her notes could not be located, and Dr. Schwartz did not know which particular tasks Ms. Hill was asked to perform. There was no direct evidence from either party with respect to Ms. Hill's performance, if any, of the other tasks of a general office clerk as described in Ms. Yundt's report. However, I note that sweeping is identified as one of the tasks of a general office clerk, and that Ms. Hill was assessed as incapable of that task. On this evidence, I conclude that the work simulation did not establish that Ms. Hill was "able to achieve and sustain average work quality and productivity standards" for the general office clerk job.

Nor am I able to conclude that the work simulation established that Ms. Hill "demonstrate[d] appropriate work behaviours." I accept the opinion of Robert Lychenko, a vocational rehabilitation specialist called on behalf of Ms. Hill, that the work behaviours she demonstrated during the work simulation, particularly her attendance record, would not be acceptable in a competitive work environment. According to Mr. Lychenko, whose expertise was not challenged, "employers are terrified of mental illness" with the consequence that to become employable even on a part-time basis, Ms. Hill would first need to develop "normalized social relations," make herself "presentable" and be able to "contain her emotions." This opinion, together with Dr. Mantro's psychiatric opinion, which I also accept, leads me to conclude that Ms. Hill's residual capacity is zero.

Mr. Lychenko also testified that if he were Ms. Hill's case manager, he would attempt to design a rehabilitation program that might help her make these changes and become employable again. Counsel for the Insurer objected to the admission of this evidence on the ground of relevance, arguing that the RECDAC was not required to ascertain Ms. Hill's rehabilitation potential. I admitted the evidence subject to further argument and Wawanesa's right to lead evidence on this issue. However, since no further argument was made or further evidence led by either party on this point, I have decided this case without regard to Mr. Lychenko's opinion regarding Ms. Hill's rehabilitation potential.

Conclusion:

For the reasons given, I find that Ms. Hill has a residual earning capacity of zero.

EXPENSES:

The issue of expenses was not dealt with at the hearing. If necessary, either party may now raise this issue in accordance with the provisions of the Dispute Resolution Practice Code (Third Ed., April 1997).

November 29, 1999

David Leitch Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 231 FSCO A98-001113

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

PATRICIA HILL Applicant

and

WAWANESA MUTUAL 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. Ms. Hill has a residual earning capacity of zero.

November 29, 1999

David Leitch Arbitrator

Date

"This 45 year old was seen in the Fracture Clinic on the 12th of March. She has had a problem with her left knee. She was involved in a motor vehicle accident 4 years ago. Her car was T-boned on the passenger side. Her left knee was tilted into the window handle for putting the window up and down.

She thinks at the time the road was negative. She has never had specialist treatment over the 4 years. However the knee has always bothered her. She has trouble with going up and down stairs and also when she gets up from the low seating position.

On examination she has flexion under 100 degrees then there is pain. The extensor short 5 degrees. She has 1+ effusion. She is exquisitely tender over the anteromedial aspect of the joint line. Her quads are very weak.

X-rays were done which were negative.

I think she has probably got a torn medial meniscus but she also has weakness of her quads. I suggest that she build up the quads and then we will review her in May. If she still has the pain at that point we will consider arthroscopic surgery."

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
2. 2Dr. Grosfield's consultation note of that date reads, in its entirety, as follows: