Neutral Citation: 1999 ONFSCDRS 236

FSCO A98-001166

BETWEEN:

MERELYN WILLIAMS

Applicant

and

GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

July 19, 20 and 21, 1999, in Ottawa, Ontario.

Appearances:

Linda A. Hanson for Ms. Williams

Scott W. Densem for General Accident

The Applicant, Merelyn Williams, was injured in a motor vehicle accident on May 20, 1994. She applied for and received statutory accident benefits from General Accident Assurance Company of Canada ("General Accident"), payable under the Schedule.¹ General Accident terminated weekly disability benefits on April 27, 1996. Ms. Williams' claim for continuing disability benefits was not resolved through mediation and she 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. Williams entitled to income replacement benefits under section 7 of the Schedule after April 27, 1996?

Ms. Williams is entitled to income replacement benefits under section 7 of the Schedule until June 1, 1997.

Merelyn Williams, a 47- year old factory labourer at the time of the accident, was involved in a rear-end collision while her vehicle was stopped. Her head was jerked back and forth in a whiplash motion. Her car sustained approximately $800 damage to the rear bumper area and frame.

Ms. Williams' common-law husband drove her home from the accident scene that Friday evening, and she began having neck pains during the night. She went to the emergency room of a local hospital the next day, complaining of neck pain. On the following Monday at work, Ms. Williams noticed right-sided low back pain, which progressively worsened through that week on the job. She maintains that low back, right hip, right leg pain and headaches prevent her from resuming her pre-accident job duties as a product piler and packager in a hardwood floor manufacturing plant.

Her Job:

At the time of the accident, Madawaska Hardwood Flooring Inc. ("Madawaska") employed Ms. Williams full-time, five days a week for ten-hour shifts per day. She was considered a good worker since being hired in September 1992.

As a piler, Ms. Williams selected pieces of cut wood from a waist height conveyer belt. Each plank was 3/8 inch thick, 2¾ inches wide and ranged one to seven feet long. The boards weighed no more than 10 lbs. Ms. Williams placed them into nearby cubbyholes behind her. On the other side of the cubbyholes, the packager took the wood and assembled neat bundles at waist height on a roller track, where they were later banded together. Although Ms. Williams' main job was a packager, at the time of the accident she was temporarily assigned to piling wood.

Ms. Williams agrees there is little difference in the physical requirements between these two positions. Based on the job description from the occupational therapist who visited the Madawaska work site and Ms. Williams' testimony, it is clear she was on her feet standing or walking almost all the time. Ms. Williams occasionally kneeled or squatted for access to the lower cubbyholes. I find her main job duties consisted of continuous walking in a 5 x 5 foot area, repeated lifting and handling wood pieces weighing up to 10 lbs and carrying them at most 15 feet.

Injuries and Treatment:

Ms. Williams testified that after the accident she worked one week and stayed in bed the following week because of pain. Her husband helped her to get up and walk, and she could not walk to the end of her driveway. However, Ms. Williams recounted little else of her changing symptoms over the ensuing five years since the accident. I understand her main complaint is that continuous walking sharply increases her right hip and leg pain.

Ms. Williams did not provide me with a history of her symptoms or treatment. She became emotionally upset talking about her physical state, and I had a great deal of difficulty following her disjointed and sometimes confused testimony. I prefer the medical reports and treatment records as the best evidence of this aspect of her case.

Ms. Williams complained to her family physician, Dr. Robert Duggan, about back pain during the four months following the accident. He sent her to Dr. Robert Kidd for manual therapy. During her first physiotherapy program in 1994, Ms. Williams reported that she had resumed most housecleaning, cooking and laundry activities in her three-bedroom home, except for the heavier chores. A second physiotherapist treated her during the first half of 1995 with exercises, laser, TENS and ultrasound, without much success.

It was apparent to Ms. Williams' rehabilitation counsellor that she was not improving. In June 1995, a functional capacity evaluation at Action Plus Physiotherapy determined that while Ms. Williams initially appeared pain-limited, with short breaks, she was able to conduct most of her work activities. The physiotherapist felt that her pain-focus did not reflect conscious exaggeration and that her behaviour was consistent with her injuries. Ms. Williams, he concluded, could resume part-time work at Madawaska with stretching breaks.

At the same time, Dr. M. Simurda, an orthopaedic surgeon, also examined Ms. Williams for General Accident. Her unrestricted body movement led him to opine that there was no objective basis for her disability. Dr. Simurda, though not a psychologist or psychiatrist, felt she had psychological problems.

Two months later Dr. David Atack, a neurologist, found no neurological disorder to explain her chronic complaints. The radiology reports do not indicate any significant abnormality. Dr. Atack and Dr. Simurda suggested that Ms. Williams could return to work.

These opinions led to a February 1996 disability evaluation from Capital Vocational Specialists ("Capital"), a disability assessment centre ("DAC") approved by the Commission. Ms. Williams' complaints were right hip and right groin pain, episodically triggering mid-back and right leg pain. She was concerned about her weight gain, sleep loss and fatigue.

Capital's physical testing demonstrated Ms. Williams could carry and lift more than the 10 lbs maximum that her job required. Except for being unable to perform static lifting of more than 9 lbs from knuckle height, Capital said she was otherwise able to meet all her job requirements. The DAC's physiatrist, Dr. Usha Buenger, concluded that while the intermittent pain may affect her working ability, the functional evaluation demonstrated that she could perform her job functions.

The psychological portion of the 1996 DAC was conducted by Dr. Denton, who noted her distressed emotional state. He noted that Ms. Williams was crying and anxious while discussing her condition. He did not believe she was attempting to deceive him. However, the standard psychological questions Dr. administered indicated she was neither depressed nor a typical chronic pain patient. Dr. Buchanan saw Ms. Williams as an excessive worrier with poor coping skills, tending to see her condition unrealistically at its worst, a precursor to depression. Although she needed to learn pain management techniques, Dr. Buchanan concluded it would be beneficial for her to resume work.

I do not accept Dr. Buchanan's opinion of Ms. Williams' ability to resume work. His finding that Ms. Williams was not coping well and needed pain management recognizes that she was suffering significant emotional or psychological problems and appears inconsistent with her immediate resumption of full-time work. Even though she was taking Paxil to counter her symptoms of depression and Tylenol for pain, the disability test is not whether it is beneficial that she resume functionality, but whether she could actually perform her duties.²

Alongside her spouse, Ms. Williams worked that summer at the couple's "chip wagon. "Jack Welsh, her husband, testified that from 8:00 a.m. to 7:00 p.m. daily they stocked supplies, blanched fries, filled the propane tank in preparation for the lunchtime rush, cooked sausages and french fries and cleaned up. The afternoons and early evenings were quiet, and Ms. Williams kept the daily cash and expenses records.

Mr. Welsh's work alongside his wife that summer allowed him to observe her abilities. He characterized his wife's problems as poor concentration, difficulty standing for prolonged periods or mounting the steps up to the wagon. In their private life, Mr. Welsh said that his wife stopped gardening, home maintenance, playing guitar and singing. She was stiff, lacked energy, slept a lot and was bad-tempered. Mr. Welsh's evidence was clear and credible. He saw his wife's demeanor and abilities over an extended time at work and home during 1996. I accept his evidence.

Mr. Welsh returned to his normal full-time job in the mining industry after the 1996 summer season. He did not often help his wife at the chip wagon during the 1997 summer season, and she worked alone with periodic help. The couple did not make much money in either 1996 or 1997. In 1998, Mr. Welsh rented out the wagon, and thereafter he sold it.

The daily records that Ms. Williams prepared show that she worked 94 days from June until the early part of October during 1997. She paid an average of $40 a day for outside labour, and the financial statements show $1,200 paid for the yearly total. This information establishes that Ms. Williams hired help for 30 of the 94 days she worked at the chip wagon during the 1997 season, approximately one third of the time. I find that Ms. Williams worked largely on her own at the chip wagon during the 1997 season.

Throughout 1996 and 1997, Ms. Williams was seeing her family doctor quite regularly. Dr. Duggan's notes show complaints of chronic back pain, stiffness, anger and emotional turmoil, sleeplessness and pain focus. He prescribed various anti-depressants and his notes indicate that Ms. Williams underwent some massage therapy.

More importantly, Dr. Duggan's clinical notes also chronicle Ms. Williams' abilities, and her progression to a more functional role. In the summer of 1997, Ms. Williams told Dr. Duggan she kept very busy with the chip wagon, although still in constant pain and depressed. She was driving, working and doing the housework by this time too. His January 1998 notes reveal she had been working out at the gym from October to December 1997 and had restarted swimming. She told him that massage therapy and counselling were helping.

Dr. Duggan's notes are very detailed. It is clear to me that she honestly confided in him. I accept his notes as reliable indicators of Ms. Williams' complaints and functional condition.

Dr. Duggan sought a psychiatric opinion from Dr. Michael Ferri in October 1997. Dr. Ferri reported that Ms. Williams' sadness was a reaction to her loss of self-esteem and freedom since the accident. He felt her cognitive skills, insight and judgment were intact. Dr. Ferri did not conduct any psychological testing, nor did he provide a disability opinion upon which I might rely.

Ms. Williams chiefly relies on Dr. Frank Adams, who examined her and prepared a June 1999 report. Dr. Adams, a psychiatrist, links her symptoms of post-traumatic stress (PTSD) and chronic pain to being shaken in the car accident. He found her insightful and lucid during questioning. He agreed with the other experts in this case that Ms. Williams' complaints about her symptoms should be accepted. Although nothing turns on his diagnosis, Dr. Adams assessed her as despondent with PTSD, but not clinically depressed.

Dr. Adams predicates his disability analysis on the theory that Ms. Williams' brain activity and chemistry were dramatically altered by the accident. He discussed at length in his report about the different aspects of the brain's neurocognitive functions and how they might be affected by inflammation after a trauma. Concluding that Ms. Williams was "highly positive" for dementia, chronic cerebral insufficiency or brain failure, Dr. Adams opined that she will never recover and was permanently disabled.

Not only does the tone of Dr. Adam's report lack objectivity, but he recites no psychological testing, period of observation or clinical studies involving Ms. Williams to justify a brain injury or the "inflammation" he theorizes about. More important, Dr. Adams does not address the fact that Ms. Williams had been mostly managing her duties at the chip wagon on her own throughout the summer of 1997. I dismiss Dr. Adam's opinion.

Analysis:

In order to be eligible for weekly disability benefits under section 7 of the Schedule, Ms. Williams must prove, on a balance of probabilities, that she suffers a substantial inability to perform the essential tasks of her job duties at Madawaska.

I am convinced by the lack of any objective evidence that Ms. Williams does not suffer any objectively-measurable physical injury. However, I am of the opinion that she developed significant emotional and psychological problems as a result of the accident. None of the experts dispute her belief in her complaints or that she authentically believes she is disabled. Relying on Dr. Buchanan's opinion, it is clear that Ms. Williams lacked the necessary skills to cope. Her family physician's notes provide a detailed and unassailable chronicle of her continuous emotional and pain complaints from the accident through the summer of 1997. Mr. Welsh also gave compelling and credible evidence that his wife was distracted, in pain, and not very functional as a result of the accident.

Relying on Mr. Welsh's evidence, together with Dr. Duggan's clinical notes showing her consistent pain focus and emotionally wrought state, I accept that Ms. Williams experienced pain as a psychological reaction to the accident. Given her pain focus and psychological state, I find that Ms. Williams has established that she did not possess the stamina to safely or efficiently work the necessary hours to fulfill her full-time regular duties as either a packager or piler at Madawaska throughout 1996 and the first half of 1997, and suffered a substantial inability to perform her essential job tasks for that period of time.

Ms. Williams worked long hours on her own for two-thirds of the 1997 summer season at the chip wagon. As a short-order cook, Ms. Williams periodically had to move fast in a relatively small area, not unlike her duties at Madawaska. Likewise significant, after Ms. Williams closed the chip wagon for that year, she admitted to her family doctor that she was working out at the gym, swimming and that counselling helped her.

Based on the evidence that Ms. Williams was functionally able to operate the business on her own for the majority of time at the commencement of the 1997 summer season, I find that she no longer suffered a substantial inability to perform her job tasks at Madawaska after June 1, 1997. Consequently, I find that Ms. Williams is entitled to income replacement benefits under section 7 of the Schedule from April 27, 1996 to June 1, 1997, together with applicable interest under the Schedule.

EXPENSES:

I am prepared to accept that Ms. Williams is entitled to her expenses of the arbitration process, but the parties can make submissions if they cannot reach an agreement.

December 6, 1999

Fred Sampliner Arbitrator

Date