Neutral Citation: 1999 ONFSCDRS 37

FSCO A97-001629

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ELHAM RAYMOND (Formerly Elham El Hitti)

Applicant

and

HALIFAX INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Joyce Miller

Heard:

November 23, 24, 25, 26; December 14, 15, 16, 17 and 18, 1998, in Ottawa, Ontario

Written submissions were received by December 24, 1998.

Appearances:

Catherine L. Coplea for Mrs. Raymond

Debbie Orth and Pat Simpson for Halifax Insurance Company

Issues:

The Applicant, Elham Raymond (formerly Elham El Hitti), was injured in a motor vehicle accident on November 6, 1994. She applied for and received statutory accident benefits from Halifax Insurance Company ("Halifax"), payable under the Schedule.¹ Halifax terminated weekly income replacement benefits on March 29, 1996. The parties were unable to resolve their disputes through mediation, and Mrs. Raymond applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Raymond entitled to weekly income replacement benefits pursuant to section 7 of the Schedule from December 5, 1994 to March 15, 1995, from May 20, 1995 to July 31, 1995 and from March 30, 1996 ongoing?

2. If Mrs. Raymond is entitled to weekly income replacement benefits for the period of December 5, 1994 to March 15, 1995, what is the amount of these benefits?

3. Is Mrs. Raymond entitled to a special award pursuant to subsection 282(11) of the Insurance Act?

4. Is Mrs. Raymond entitled to interest on overdue amounts?

5. Is Mrs. Raymond entitled to her expenses in this arbitration pursuant to subsection 282(10) of the Insurance Act?

Result:

1. Mrs. Raymond is entitled to weekly income replacement benefits from December 5, 1994 to March 15, 1995, from May 20, 1995 to July 31, 1995 and ongoing from March 30, 1996.

2. Pursuant to paragraph 10(3)(b) of the Schedule, Halifax is entitled to deduct, from the weekly income replacement benefit of $267.54 payable to Mrs. Raymond, 90 percent of the net income received by Mrs. Raymond for the period December 5, 1994 to March 15, 1995 in respect of employment subsequent to the accident.

3. Mrs. Raymond is entitled to a special award of $3,500 inclusive of interest pursuant to subsection 282(11) of the Insurance Act.

4. Mrs. Raymond is entitled to interest on overdue amounts pursuant to section 68 of the Schedule.

5. Mrs. Raymond is entitled to her expenses incurred in this arbitration.

EVIDENCE AND ANALYSIS:

Background:

Mrs. Raymond, who is 50 years old, was involved in an accident on November 6, 1994. She was stopped at an intersection, preparing to make a left hand turn, when her car was rear-ended. The impact caused her car to be pushed more than 30 feet into the road. Mrs. Raymond's head was flung back and forth. She did not strike her head on the steering wheel, but she says she instantly felt a strong, diffuse headache. She was taken to the hospital by ambulance. After several hours of observation she was prescribed Tylenol #3 and released.

At the time of the accident Mrs. Raymond was working at home as a child care provider with the Andrew Fleck Child Care Services ("Andrew Fleck"), a day care agency for children from the ages of 3 months to 10 years.

Mrs. Raymond began to work with Andrew Fleck in 1991 when her husband years died suddenly of a heart attack. Mrs. Raymond had emigrated from Lebanon with her husband and four children in 1990. She had a grade eight education and limited English and needed to earn a living. After working for a short time as a seamstress, she began to work as a child care provider in December 1991.

When the accident happened Mrs. Raymond was working 10 hours a day, five days a week, looking after four children in her own home: two pre-school girls aged 22 and 32, and two school-age boys, aged 5 and 7. Mrs. Raymond testified that looking after the children constituted her primary source of income.

Mrs. Raymond testified that after the accident she could not work because of her injuries. She asked her sister to look after the two little girls. Andrew Fleck placed the two boys with another child care provider.

Essential Tasks:

Mrs. Raymond's essential tasks as a child care provider were two-fold: direct interaction with children and home maintenance tasks.

Interaction with Children

Mrs. Raymond's pre-accident workday involved constant interaction with the children. Along with looking after the children's basic needs, she had to schedule, plan and organize activities that were compatible with each child's particular developmental stage. She had to facilitate their independence and help them to develop skills.

Mrs. Raymond's working day began at 7 a.m. when the children were brought to her home and ended at 5 p.m. Sometimes the parents would be late for pick-up and the children would stay on longer. In that case she would give them supper. The pre-schoolers were with her all day, the school-age children would arrive at her house at 8 a.m. before they started school, and returned to her home after school at about 4 p.m. On school holidays, such as Professional Development days, Christmas, Easter and summer vacation, she had to look after the school age children all day.

Except in warm weather, when the children arrived Mrs. Raymond had to undress the pre-school children and assist the school-age children in removing their outer wear. When they left she had to dress or assist in dressing. She also did the same when they went out to play.

Several times during the day Mrs. Raymond had to prepare and serve light snacks. She also had to prepare and serve a noon meal. Feeding the pre-school children required lifting them in and out of high chairs. On occasion, she had to administer medication.

Throughout the day, Mrs. Raymond had to change diapers. She also had to assist one of the children in toilet training. This required lifting the child onto and off the toilet. She had to clean the children. If a child got very soiled she had to bathe the child in the bathroom on the second floor of her house. As well, she had to put the pre-schoolers down to nap in the afternoon. One child slept in the play pen and the other on a mattress on the floor.

Mrs. Raymond had to supervise the children's play both indoors and outdoors. Indoors, she played with the pre-schoolers on the floor or at the table where they would draw and colour. At the park, she had to lift the pre-schoolers on and off the swings. She had to help the children onto the five foot high "monkey bars" and to "spot" them, i.e., stand underneath them to be ready to catch them if they fell. Sometimes she had to carry one of the pre-schoolers home from the park if the child was too tired to walk.

In general, Mrs. Raymond's essential tasks required her to lift, carry, bend, stoop, walk and stand. She had to be constantly on the alert for any emergencies that might arise and had to be able to respond quickly when they did. Her schedule was dictated by the needs of the children. She could not take breaks or rest when she wanted to, but had to follow the rhythm of the children's needs.

Home Maintenance

Another part of Mrs. Raymond's essential tasks was making sure that the children had a clean and safe environment. In this respect her essential tasks included dusting the house on a daily basis, vacuuming, cleaning the bathtub and toilet, cleaning up after toileting and diapering, changing sheets, doing laundry, washing toys, scrubbing floors and cleaning other aspects of the area where the children's activities took place.

From 1991 until she had the accident, Mrs. Raymond performed all of her essential tasks as a child care provider without any assistance.

Medical Evidence and Findings:

Mrs. Raymond testified that the day after the accident she had pain in her neck, back and across her chest from the seat belt. She felt dizzy. Her head continued to ache. She could not sleep because of the pain. She saw her family doctor, Dr. Riad Mansour, on Monday, November 8, 1994. Dr. Mansour prescribed Tylenol #3 for pain, Elavil to help her sleep and physiotherapy.

On November 22, 1994, Dr. Mansour provided Halifax with a Health Practitioner's Certificate stating that Mrs. Raymond was suffering from headaches, stiff neck, neck and back pain and had difficulty sleeping. His primary diagnosis was whiplash and back pain. He placed restrictions on lifting and prolonged standing for Mrs. Raymond.

On December 2, 1994, Mrs. Raymond advised Mrs. Pat Bergeron, Senior Claims Representative for Halifax, that she was afraid of losing her job and that she was returning to work with the help of her daughter-in-law, Mrs. Gisel El Hitti, who was pregnant at the time.

Mrs. Raymond testified that only the two pre-schoolers returned for care to her. The two boys had chosen to stay with the substitute provider.

Ms. Pamela Waddington, Mrs. Raymond's employer at Andrew Fleck, testified that but for the accident the boys would have stayed with Mrs. Raymond.

Mrs. Raymond testified, that during the period that Mrs. El Hitti assisted her, she suffered from headaches, neck pain, back pain and extreme fatigue because of sleep disruption. She also attended physiotherapy at the Hunt Club Physiotherapy Clinic three times a week. Mrs. El Hitti testified that she did all the heavy lifting, carrying, dressing, meal preparation, feeding and playing with the children. Mrs. Raymond took on a supervisory role.

In March 1995, Mrs. El Hitti, who was now in an advanced stage of pregnancy, could no longer assist Mrs. Raymond. Mrs. Raymond testified that she was in too much physical pain to do the job on her own and had to give up caring for the two little girls.

Ms. Waddington testified that Andrew Fleck considered Mrs. El Hitti's assistance to be only temporary. She stated that when caring for children one needs to be alert at all time in order to give proper care. She stated that Andrew Fleck would not engage a child care provider who was in pain, could not lift, suffered from fatigue and was taking the type of medication prescribed to Mrs. Raymond. As far as Andrew Fleck was concerned, Mrs. Raymond's medical condition after the accident was such that she was not capable of resuming her essential child care tasks on her own.

Mrs. Raymond testified that initially she was improving with physiotherapy treatment. However, six weeks after the accident she still had persistent neck and low back pain. In mid-January 1995 she began experiencing increased neck pain. The clinical notes of the physiotherapist, Janet Sprague, noted on January 23, 1995 that the sternocleidomastoid ("SCM") muscle on the right side of Mrs. Raymond's neck was swollen.

On March 13, 1995 Dr. Mansour spoke to Mrs. Bergeron and recommended that Mrs. Raymond be given a period of rest. He asked her if Halifax would pay Mrs. Raymond benefits for three weeks. On March 15, 1995 Halifax resumed paying Mrs. Raymond benefits which it had terminated on December 4, 1994, after Mrs. Raymond had advised Halifax she was returning to work.

On March 17, 1995 Halifax sent Mrs. Raymond to an Insurer's Medical Examination ("FME") with Dr. Karen Stolee, a physiatrist. In her report to Halifax, Dr. Stolee stated that since the accident Mrs. Raymond had good resolution of her back pain. However, she noted that Mrs. Raymond continued to suffer from headaches, persistent neck pain, and stiffness as well as chronic swelling of her right SCM muscle.

Dr. Stolee stated that Mrs. Raymond had developed a "profound sleep disruption and probable mild depression secondary to the chronicity of her pain." Dr. Stolee made a number of recommendations which included that Mrs. Raymond should take anti-depressant and anti-inflammatory medication over the next month, discontinue the use of a soft collar, apply ice two to three time a day on her anterior neck muscles, as well as engage in stretching and aerobic exercise.

Dr. Stolee also recommended that Mrs. Raymond have an occupational therapy assessment and that she be off work for another three to four weeks in order to rest.

On May 3, 1995 Halifax terminated Mrs. Raymond's benefits effective May 20, 1995 based on Dr. Stolee's report of March 17, 1995.

On May 12, 1995 Mrs. Raymond began to see another family physician, Dr. Barry Dworkin, who recommended that she have a Functional Capacity Evaluation ("FCE") at the Canadian Back Institute ("CBI").

Halifax agreed to fund the FCE. In her log notes of May 15, 1995, Mrs. Bergeron, referring to the FCE, wrote "nobody can exaggerate on this." An appointment for the FCE was made for August 21, 1995.

On August 21 and 22, 1995, Mrs. Raymond participated in the FCE at the CBI. On August 23, 1995, the CBI reported to Halifax that Mrs. Raymond did not fully meet the job demands associated with her day care position and activities of daily living. It recommended that Mrs. Raymond participate in an active therapy program for a duration of four to six weeks. The report stated that: "Following the active therapy program, we anticipate a return to full time work and activities of daily living". [emphasis added]

Halifax agreed to pay for the CBI program and reinstated Mrs. Raymond's benefits as of August 1, 1995. Halifax submitted that the reason it chose to pay Mrs. Raymond's benefits retroactive to August 1, 1995 was because Mrs. Raymond had been out of the country from May 20, 1995 to July 31, 1995. Halifax submitted that if Mrs. Raymond could travel to Lebanon then she was not substantially disabled from performing the essential tasks of her job.

Mrs. Raymond testified that she went to Lebanon to attend her daughter's wedding. She stated that it was important to her daughter that she be there for the occasion. Mrs. Raymond testified that while she was in Lebanon she continued to have pain and had to seek medical attention.

Mrs. Raymond completed her program at the CBI and was discharged on November 2, 1995. The CBI discharge report of November 3, 1995 reported that Mrs. Raymond demonstrated the functional ability to perform the majority of her work related tasks. She still, however, required short breaks to perform pain control exercises and she had to utilize pacing strategies when performing her activities of daily living.

A return to work plan was agreed upon. The plan provided that on November 6, 1995 Mrs. Raymond would begin to assist her sister to take care of a two year old child for four hours a day. This would increase to six hours the next week. In the third week Mrs. Raymond would take care of the child in her own home for an eight-hour period with support from her sister. By November 27, 1995, it was "anticipated" that Mrs. Raymond would resume all child care responsibilities on a full time basis.

Mrs. Raymond began the trial return to work at her sister's home but had to discontinue it. She reported that she developed a severe headache within one hour of supervising the child's play. She stated that she could not respond quickly to the child's needs and therefore could not continue with her work trial.

On November 16, 1995, Halifax advised Mrs. Raymond that her benefits would be terminated as of November 24, 1995 on the basis of the CBI discharge report of November 3, 1995.

On December 5, 1995, in a follow-up report by the CBI to Halifax, Mrs. Raymond's problems in her work trial were acknowledged. Nevertheless, the CBI concluded that Mrs. Raymond could return to all of her pre-accident activities.

I give little weight to the CBI's conclusion. It is clear from the evidence that Mrs. Raymond's work trial was to take care of one child. However, prior to the accident Mrs. Raymond was taking care of four children. If Mrs. Raymond, whose evidence I found credible, was unable to take care of one child with assistance, in my view, it is not reasonable to then conclude that she could resume the majority of her work related tasks. Moreover, I find that the CBI recommendation that Mrs. Raymond take breaks to perform pain control exercises and pace her activities is neither realistic nor practical given that the rhythm of her work day is determined by the children's needs.

On December 12, 1995, Dr. Dworkin wrote a "follow up report" to Mrs. Bergeron. He stated that he had seen Mrs. Raymond five times since November 1, 1995. He noted that Mrs. Raymond "still complains of pain and stiffness in her neck and shoulders. She states that she still cannot lift the children to any great degree due to her pain. Her strength is good but the pain is the impinging factor." Dr. Dworkin stated that he had prescribed several medications to her and that he had referred her for massage therapy. As well, he advised Mrs. Bergeron that he had made an appointment on February 21, 1996 for Mrs. Raymond to be seen by Dr. N.C. Natarajan, a specialist in neck and back pain management. Dr. Dworkin went on to state that:

I do not doubt that [Mrs. Raymond] is experiencing pain and discomfort in her neck and shoulders. The CBI report suggests that she can resume full and active duties caring for one child as of December 1, 1995. It is my understanding that her job description calls for the care of more than one child. I do not think she is prepared to continue in this avenue of work. Her pain compromises her ability to function normally. I believe that the CBI has helped her improve but since her discharge, she has remained burdened with this pain.

I have observed how frustrated she has become over the weeks. She clearly wants normalcy in her life. To that end I think she should be give the support necessary for her to try the avenues of treatment put forth.

Mrs. Raymond disputed the termination of her benefits and, in February 1996, she attended a Designated Assessment Centre ("DAC") for a Disability and Medical and Rehabilitation Assessment performed by Capital Vocational Specialists Inc.

As part of the DAC assessment, Mrs. Raymond took part in an Ergos computer generated FCE, administered by an occupational therapist, Ms. Christina Michalchuk-Lucas, a medical examination by a physiatrist, Dr. Lynn MacGregor and a psychological assessment by Dr. Denton Buchanan. The conclusion of the DAC was that Mrs. Raymond was not substantially disabled from performing the essential tasks of her job.

For the following reasons, I give very little weight to the DAC conclusion.

I give no weight to the FCE performed by Ms. Michalchuk-Lucas and her conclusion that Mrs. Raymond was not substantially disabled from performing the essential tasks of her job.

The FCE did not test Mrs. Raymond's ability to do the essential tasks of her job, instead, it tested her strength levels according to classifications defined by the American Department of Labor. Despite the fact that the Ergos test concluded that Mrs. Raymond's strength level was "sedentary", Ms. Michalchuk-Lucas raised Mrs. Raymond's strength ability from "sedentary" to "light" based on her subjective belief that Mrs. Raymond was capable of performing at that level.

Although there was objective evidence to support that a child care provider job is rated as "medium," Ms. Michalchuk rated Mrs. Raymond's job as "light". She then concluded in her report of February 20, 1996 that "Based on the results of the FCE, which indicated that [Mrs. Raymond] can work safely at the light level, she should be able to resume her duties as a caregiver to four children."

Ms. Michalchuk-Lucas testified that she raised Mrs. Raymond's strength level from "sedentary" to "light" based on her observations that Mrs. Raymond did not exert maximum efforting while performing the FCE. She stated that she classified Mrs. Raymond's job as "light" based on the parameters of her interview with Mrs. Raymond, the American Dictionary of Occupational Titles ("DOT") and her own past personal experience with the particular job that Mrs. Raymond did.

Even if I accept Ms. Michalchuk-Lucas' conclusion that Mrs. Raymond's strength level was "light" as opposed to "sedentary," I am not convinced by the evidence she gave that Mrs. Raymond's job should be classified as "light".

Under-cross-examination, Ms. Michalchuk-Lucas was presented with copies of DOT and the Canadian version, National Occupational Classifications ("NOC"), which both rated the job level of a child care provider as requiring "medium" strength. Ms. Michalchuk-Lucas stated that she was not familiar with the Canadian classifications. Despite the fact that she stated that she had relied on DOT, Ms. Michalchuk-Lucas dismissed both DOT and NOC as being "generic" descriptions. She stated that she had relied on other child care descriptions which classified the job as "light". Ms. Michalchuk-Lucas, however, was unable to refer to any specific source which classified the job of an at-home child care provider as "light".

I find that Ms. Michalchuk-Lucas' conclusion, that Mrs. Raymond's duties as a caregiver to four children was a "light" job and that she can "safely" work at this level, lacked an objective basis. In my view, her subjective opinion, which I found to be vague, was not sufficient to support her conclusion.

Dr. Buchanan, who performed the psychological assessment, in his report dated February 26, 1996, stated that Mrs. Raymond had some significant psychological distress. However, he was of the view that her mood disturbance was related to problems she had with her then fiancé, who has since become her husband.

In his report, Dr. Buchanan went on to state: "While I do not feel that her emotional status is totally the result of this auto accident, I think, to be fair, it at least partially has contributed. The pain has become a convenient focus, but I also believe given the history provided, that she does have a rather typical whiplash injury. The pain is legitimate." [emphasis added]

Dr. Buchanan recommended that Mrs. Raymond be offered eight to ten pain management sessions and that she be "guided into increasing her overall activity". As well, he recommended marital counselling for Mrs. Raymond and her fiancé "concerning their coping with her discomfort."

Dr. Buchanan concluded that "Concerning [Mrs. Raymond's] return to work, I see no reason that she cannot return to her previous lifestyle immediately. These pain management and marital counselling sessions can certainly done [sic] concurrently with a return to work."

I give very little weight to Dr. Buchanan's assessment that Mrs. Raymond's mood disturbance was related to her personal problems with her fiancé. If, as Dr. Buchanan opined, Mrs. Raymond experienced some psychological distress in her relationship with her fiancé, most likely it was insignificant. Mrs. Raymond eventually married her fiancé and I accept her testimony that she has a good marriage. In any case I find that Dr. Buchanan's psychological assessment irrelevant since Mrs. Raymond is not claiming to be disabled because of any psychological injury she received as a result of the accident.

I give little weight to Dr. MacGregor's opinion that Mrs. Raymond was not substantially disabled from performing the essential tasks of her employment.

Dr. MacGregor testified that Mrs. Raymond, whom she found credible, had a high pain level, needed to pace herself and take breaks in her work and would not be competitively employable. Dr. MacGregor stated that, in coming to her conclusion that Mrs. Raymond was not substantially disabled from performing the essential tasks of her employment, she relied heavily on the FCE assessment and Dr. Buchanan's report.

Regarding her own evaluation, in her report to Halifax on February 26, 1996, Dr. MacGregor concluded that Mrs. Raymond "has some residual symptomatology but she is not totally disabled from carrying out the essential tasks of her former employment and homemaking activities." Being "totally disabled", however, is not the test pursuant to subsection 7(1) of the Schedule. [emphasis added]

As a result of the DAC report, Halifax terminated Mrs. Raymond's benefits on March 29, 1996.

After her benefits were terminated, Mrs. Raymond continued to see Dr. Dworkin on a regular basis.³ She received pain treatments from Dr. Natarajan in March 1996. She underwent a psychological assessment and pain management counselling from May 27 to August 19, 1996, with Dr. Terry Lynn Gall. She was also seen again by Dr. Natarajan and by several other medical practitioners.

In June 1998, Mrs. Raymond began to see Dr. Martin Gillen, a physiatrist who specializes in chronic pain rehabilitation. At the time of the hearing Mrs. Raymond had seen Dr. Gillen 11 times and had participated in pain counselling sessions in July 1998.

Dr. Gillen prepared a detailed report on October 5, 1998 and testified at length at the hearing.

Dr. Gillen testified that Mrs. Raymond's symptoms fulfilled the criteria of chronic pain syndrome ("CPS") which he defined as a collection of symptoms that included chronic pain (i.e., pain which lasts longer than six months), sleep disorders, mood changes up to and including clinical depression, decreased endurance, memory and concentration difficulties and personality changes.

Dr. Gillen testified that one does not wake up with CPS, rather it is a secondary diagnosis which arises from some other primary diagnosis. He stated that within three to six months after an injury, it is not unusual to see a pattern of change and fluctuation in a person's pain level.

Typically, in the first six weeks following a soft tissue injury, a person will generally report some level of improvement. By the third month, if the person is moving into a chronic pain situation, he/she will report a fluctuation in pain. By the sixth month, one begins to see a pattern in the chronicity of the pain.

Dr. Gillen stated that when a person begins to enter the range period of chronicity it is not unusual to see frustration arise in the doctor and patient relationship. Expectations are not being met on either side. It is quite a common pattern at the six month period for patients to either change their physicians or to see another doctor along with their family doctor.

Dr. Gillen stated that the onset of Mrs. Raymond's case had typically followed the pattern of the development of CPS.

Dr. Gillen testified that Mrs. Raymond's CPS resulted from the musculoskeletal injuries she sustained in the car accident. In his report of October 5, 1998, he noted that Mrs. Raymond fulfilled the criterion for a severe and prolonged disability. It was his opinion that as a result of the car accident Mrs. Raymond was not competitively employable in any capacity as a child care provider, either full-time or part-time.

On September 29, 1998, less then two months before the arbitration hearing, Halifax sent Mrs. Raymond to see Dr. Gavin Shanks, a physiatrist, in Kingston, Ontario for an IME. Dr. Shanks was asked by Halifax to give his opinion on Mrs. Raymond's physical abilities during the period of March 19, 1996 to November 6, 1996. In his report of October 5, 1998 he concluded the following:

Based on my history obtained in today's examination and on my physical examination and my review of the very extensive documentation you sent me, I believe [Mrs. Raymond] did not suffer a substantial inability to perform the essential tasks of her employment as a care giver for the period from March 19th, 1996 to November 6th, 1996.

I am quite confident that [Mrs. Raymond] had all of the functional capacity necessary to resume her regular work during the March 19th, 1996 to November 6th, 1996 period.

Dr. Shanks testified that there was no indication that Mrs. Raymond was dissembling about her pain and he found her to be "quite credible." Although he believed she had chronic pain, which at times was unbearable, it was his view that Mrs. Raymond's work as a child care provider of four children was a "low level" job that was not physically demanding. He did agree under cross-examination that pain can interfere with a person's function in every aspect of daily life. As well, he agreed that children were unpredictable and that one cannot modify a child's needs to suit the needs of a disabled person.

I give little weight to Dr. Shanks' conclusion that Mrs. Raymond was not substantially disabled from performing the essential tasks of her job. I disagree with his characterization of Mrs. Raymond's work as a "low level" job that was not physically demanding. Mrs. Raymond's job description required her to take care of up to five children, ages three months to ten years. At the time of the accident she was working 10 hours a day and was responsible for four children ages two and a half to seven. While Mrs. Raymond's work may not be as physically demanding as a brick layer's, (a job Dr. Shanks compared hers to), nevertheless, I find that her job was multi-tasked and required her to constantly react to the rhythm of the children's needs. As indicated above Mrs. Raymond was required to lift, carry, bend stoop, walk, stand, be constantly alert and respond to any emergencies that might arise. Based on the evidence presented I find that the demands of Mrs. Raymond's work were at a higher physical level than Dr. Shanks' characterization of them.

Analysis:

In order to succeed in her claim Mrs. Raymond must prove, on a balance of probabilities, that she continues to be substantially disabled from performing the essential tasks of her pre-accident employment, pursuant to subsection 7(1) of the Schedule.⁴

It is Mrs. Raymond's position that as a result of the accident, she developed chronic pain and can no longer work as a child care provider.

Halifax submitted that the cause of Mrs. Raymond's chronic pain stems from personal family problems which include the sudden loss of her husband in 1991, as well, the fact that in 1996 her son was involved in a serious accident and was charged with criminal negligence.

Chronic Pain

The issue of chronic pain has been the subject of a number of arbitrations. In Quattrocchi and State Farm,⁵ Arbitrator Nancy Makepeace reviewed the cases and set out a list of general principles that have emerged in the arbitration decisions, with which I agree. Some of these principles include the following:

• Pain on its own is not compensable in the statutory accident benefit scheme. Nor does a diagnosis of "chronic pain syndrome" guarantee entitlement.⁶ However, an insured may be found entitled to benefits because of disabling pain, despite there being no objectively confirmable impairment.

• It is not necessary for an Arbitrator to accept any particular diagnosis of the Applicant's complaints, because the issue for the Arbitrator is whether the Applicant is substantially disabled from performing the essential tasks of her pre-accident job as a result of the accident. This requires a comparison of the insured person's functional ability before and after the accident. Arbitrators have shown little interest in debates between medical experts as to the legitimacy or significance of a diagnosis of "chronic pain syndrome."

• Where there is no objective evidence of impairment, or the objective evidence does not explain the degree of pain reported by the insured person, the insured's credibility becomes important. In assessing the insured person's subjective pain complaints, Arbitrators consider all of the circumstances, including the consistency of the insured person's complaints and apparent functional level.

• In order to prove entitlement to weekly benefits, an insured must show that her disability resulted from the accident. Arbitrators have consistently said that the accident need not be the only cause of the insured's problems, but must be a significant or material contributing factor. Accordingly, even if the Applicant's own attitudes or inaction have delayed her recovery, she may still be entitled to benefits, if the accident remains the more significant factor.

• Where an insured person becomes deconditioned and depressed as a result of ongoing pain and disability, thus further delaying her recovery, she may be found entitled to benefits if the Arbitrator finds that the psychological elements of her condition are secondary to the injuries she sustained in the accident. Arbitrators have also recognized the "thin skull" principle in weekly benefits cases. On the other hand, insurers are not required to subsidize an insured person who takes the opportunity of an accident to leave the workforce and adopt an inactive lifestyle.

• It is not sufficient to dismiss a chronic pain claim on the basis that returning to work would not harm the applicant:

• Nor is it sufficient to say that returning to work would be therapeutic for the applicant. Whether work might be therapeutic is a distinct question from whether the Applicant is substantially disabled from returning to her pre-accident job.

For the following reasons I find that Mrs. Raymond has discharged her burden that as a result of the accident on November 6, 1994, she developed chronic pain which has rendered her substantially disabled from performing the essential tasks of her employment.

Credibility

One of the factors that must be considered in assessing whether a person is suffering from chronic pain is credibility. In this case I found Mrs. Raymond to be a credible witness. She responded to questions in a straightforward and consistent manner. Her responses were detailed and logical. At times Mrs. Raymond became very emotional under cross-examination, nevertheless, she did not evade questions or exaggerate her responses.

None of the medical practitioners who examined Mrs. Raymond expressed any concern with her credibility. In fact, when Dr. Shanks and Dr. MacGregor testified, they both clearly and strongly expressed their opinions that Mrs. Raymond's complaints regarding her chronic pain were credible. Dr. Buchanan found that Mrs. Raymond's pain was "legitimate".

In its submissions Halifax conceded that Mrs. Raymond's complaints were credible. Nevertheless, Halifax maintained that Mrs. Raymond was not substantially disabled from performing the essential tasks of her job. Even if she was substantially disabled, Halifax submitted, the accident did not cause the disability.

Causation [^7]

For the following reasons, I give little weight to Halifax's position that Mrs. Raymond's chronic pain is a result of personal family problems.

At the time of the accident, three years after her husband's death, Mrs. Raymond had been working as a child care provider, without assistance and without pain. The only medication she was taking was for heart palpitations, a condition she has had for many years. Only after the accident did she start to take medication for pain, depression and to help her sleep.

While Mrs. Raymond most likely was distressed when her son was involved in a serious car accident, I was only provided with speculation, not probative evidence, that this distress in any way contributed to Mrs. Raymond's chronic pain.

Accordingly, I find that the causation issue raised by Halifax has no weight in the circumstances of this case.

Findings on the Medical Evidence

In evaluating the medical evidence, I prefer Mrs. Raymond's evidence over that of Halifax's.

1. December 5, 1994 to March 15, 1995

I find that when Halifax terminated Mrs. Raymond's accident benefits on December 4, 1994, it turned a blind eye to the fact that Mrs. Raymond was substantially unable to do the essential tasks of her job. The adjustor's file, including her log notes, makes it clear that Halifax was aware that during this period Mrs. Raymond was taking pain medication, attending physiotherapy two to three times a week and, with the assistance of her daughter-in-law, working with a reduced work load. Halifax was unable to present any relevant cogent medical evidence to support its position that Mrs. Raymond was able to do her job. Based on the medical evidence, I find that during the period of December 5, 1994 to March 15, 1995, Mrs. Raymond was substantially disabled from performing the essential tasks of her employment.

2. May 20 to July 31, 1995

Halifax terminated Mrs. Raymond's benefits on May 19, 1995 on the basis of an IME performed by Dr. Stolee in March 1995. In my view, Halifax had very little cogent medical evidence to support its position that Mrs. Raymond was not substantially disabled from performing the essential tasks of her employment when it terminated her benefits at that time. I find that in her report of March 17, 1995, Dr. Stolee never stated that Mrs. Raymond was not substantially disabled from doing her job. Rather, she stated that Mrs. Raymond had developed a profound sleep disturbance and depression secondary to the chronicity of her pain and recommended among other things that she rest for three to four weeks.

At the time that Halifax terminated Mrs. Raymond's benefits, it chose to ignore Dr. Stolee's recommendation that Mrs. Raymond undergo an occupational therapy assessment. As well, it ignored Dr. Mansour's recommendation that she first be re-evaluated by Dr. Stolee before terminating her benefits. According to Mrs. Bergeron's log notes on April 24, 1995, Dr. Mansour called Mrs. Bergeron. He told her that Mrs. Raymond was still reporting that she had a sore neck and was not feeling any better. He told Mrs. Bergeron that he did not know what else to do for Mrs. Raymond and he had informed Mrs. Raymond that he had done everything he could do for her. He recommended that Halifax should again send Mrs. Raymond to see Dr. Stolee and evaluate her progress.

I am reinforced in my position that this was a premature termination of benefits by the fact that when Mrs. Raymond underwent a FCE by the CBI on August 21 and 22, 1995 the CBI found that she was unable to meet her job demands and activities of daily living.

I give no weight to Halifax's submission that Mrs. Raymond was not substantially disabled from the essential tasks of her employment from May 20 to July 31, 1995, because she was able to travel to Lebanon. Halifax did not provide any medical evidence to support this assertion. I accept it as plausible that Mrs. Raymond went to Lebanon because it was important to her daughter that she be present at the wedding.

Accordingly, I find that on a balance of probabilities Mrs. Raymond was substantially disabled from performing the essential tasks of her job between May 20 and July 31, 1995.

3. March 30, 1996 and ongoing

For the reasons stated above, I give little weight either to the DAC report or to Dr. Shanks' report and testimony that Mrs. Raymond is not substantially disabled from performing the essential tasks of her job as a child care provider.

I find that Mrs. Raymond has presented consistent, credible medical evidence that as a result of the car accident she can no longer work as a child care provider. The medical evidence shows that before the accident Mrs. Raymond was working full time without any limitations or assistance. After the accident, despite persistent neck pain and severe headaches, Mrs. Raymond made an effort to return to work taking medication, and with the assistance of her daughter-in-law. Three and a half months later, when her daughter-in-law could no longer help her,

Mrs. Raymond had to stop working. Despite physiotherapy, massage therapy and a conditioning program with the CBI, Mrs. Raymond's condition deteriorated so that by the end of 1995 she could not even take care of a two year old child on a part-time basis because of her pain.

I accept Dr. Gillen's diagnosis that as a result of the musculoskeletal injuries Mrs. Raymond sustained in the car accident, over time she developed CPS, which includes chronic pain, mood changes, sleep disorder, decreased endurance and memory and concentration difficulties. I also accept his conclusion that Mrs. Raymond was not competitively employable in any capacity as a child care provider, either full-time or part-time. This conclusion is consistent with Andrew Fleck's position that it would not engage a child care provider who was in pain, could not lift, suffered from fatigue and was taking the type of medication that Mrs. Raymond was on.

Accordingly, I find that as a result of the accident Mrs. Raymond is substantially disabled from performing the essential tasks of her employment. I find that pursuant to subsection 7(1) of the Schedule she is entitled to income replacement benefits from December 5, 1994 to March 15, 1995, from May 20, 1995 to July 31, 1995 and from March 30, 1996 and ongoing.

Pursuant to subsection 10(3)(b) of the Schedule, Halifax is entitled to deduct from the weekly income replacement benefit of $267.54 payable to Mrs. Raymond, 90 percent of the net income received by Mrs. Raymond for the period December 5, 1994 to March 15, 1995 in respect of employment subsequent to the accident.

Special Award:

Submissions

Mrs. Raymond submitted that Halifax should be ordered to pay her a special award of $15,000, not only because its termination of her benefits on December 5, 1994 was unreasonable, but also because Halifax has unreasonably maintained its position not to pay her the difference between her earnings of December 4, 1994 and March 15, 1995, as it is required to do pursuant to subsection 10(3) of the Schedule. As well, Mrs. Raymond submitted that Halifax's termination of her benefits for the period of May 20, 1995 and July 31, 1995 was unreasonable in light of the medical evidence available to it. Mrs. Raymond submitted that Halifax's attitude was to keep cutting her off in the hope she would go away.

Halifax submitted that it has treated Mrs. Raymond in a fair and reasonable manner. Halifax pointed to the fact that it could have sent Mrs. Raymond to a DAC when she returned from Lebanon in July 1995, but instead it waited for the results of the FCE performed by the CBI and the results of a CT scan Dr. Dworkin had ordered. As well, Halifax pointed to the fact that when the CBI recommended a course of physiotherapy it paid for the treatment and reinstated her weekly income replacement benefits.

The Law

Pursuant to subsection 282(10) of the [Insurance Act]⁸ an arbitrator must grant a special award, up to 50 per cent of the benefit awarded, once she finds that an insurer has acted unreasonably in withholding or delaying payment. In Plowright and Wellington,⁹ Arbitrator Palmer made the following comments, with which I agree, on what can be considered to be unreasonable behaviour on the part of an insurer:

"Unreasonable" behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

As I stated in Hernandez and Zurich¹⁰

Terminating an applicant's income replacement benefits is a very serious matter with potentially serious consequences. An insurer contemplating the termination of income replacement benefits, or maintaining a denial, must act reasonably and consider all of the documentation before it. An insurer cannot pick and choose information that favours its own position while ignoring relevant information that favours the applicant.

Findings

Halifax should have been aware of the reliable evidence that Mrs. Raymond was substantially disabled from performing the essential tasks of her job when it terminated her benefits on December 4, 1994. The adjuster's log notes of December 1, 1994 state that Mrs. Raymond had called Halifax and informed it that she was returning to work with the assistance of her daughter-in-law because she was afraid to lose her job. The evidence shows that Mrs. Raymond returned to a reduced work load, was on pain medication and attending physiotherapy three times a week when Halifax terminated her benefits on December 4, 1994. If Halifax, as it claims, was unaware of these facts, I find, that according to the adjuster's file and log notes, it was reasonable for Halifax to have become aware of this shortly thereafter.

I find that Halifax acted unreasonably when it terminated Mrs. Raymond's income replacement benefits on December 4, 1994. Halifax ignored the fact that Mrs. Raymond's income had been reduced because of her inability to perform the full demands of her job duties. I find that Halifax took and continues to take a stubborn and inflexible position in not paying Mrs. Raymond the difference between the reduced amount she earned in the period between December 4, 1994 and March 15, 1995 and what she was earning at the time of the accident as Halifax is required to do pursuant to subsection 10(3)(b) of the Schedule.

I also find that Halifax acted unreasonably in terminating Mrs. Raymond's benefits on May 20, 1995. Halifax ignored Dr. Mansour's recommendation to have Mrs. Raymond re-assessed by Dr. Stolee as a follow-up to her March 17, 1995 IME. Given Dr. Stolee's findings that Mrs. Raymond had developed a "profound sleep disruption and probable mild depression secondary to the chronicity of her pain," and had recommended that Mrs. Raymond rest for three to four weeks, it would have been reasonable to have had Dr. Stolee re-evaluate Mrs. Raymond before Halifax terminated her benefits. At a minimum Halifax should have at least followed up on Dr. Stolee's recommendation that Mrs. Raymond undergo an occupational therapy assessment before terminating her benefits.

I am further reinforced in my view that this was an unreasonable and premature termination by the fact that the CBI report of August 23, 1995 clearly showed that Mrs. Raymond could not fully do her job demands and her activities of daily living and recommended an active therapy program.

I also find that Halifax acted unreasonably in reinstating Mrs. Raymond's benefits pursuant to the CBI report only retroactive to August 1, 1995. I find Halifax's submission that Mrs. Raymond was not substantially disabled during the period of her visit to Lebanon to be speculative. There was medical evidence, including the CBI report, that Mrs. Raymond was unable to work after Halifax had terminated her benefits on May 20, 1995.

With respect to the termination of Mrs. Raymond's benefits on March 29, 1996, despite my findings on the DAC report, I do not find that Halifax's reliance on the DAC to terminate Mrs. Raymond's benefits unreasonable.

For all of the above reasons, I exercise my discretion to award Mrs. Raymond a special award. I do not, however, find that Halifax's behaviour was so egregious that it warrants the maximum award of 50 percent. Accordingly, I find that Mrs. Raymond is entitled to a special award of $3,500, inclusive of interest, pursuant to subsection 282(10) of the Insurance Act.

EXPENSES:

I exercise my discretion to award Mrs. Raymond her expenses incurred in this arbitration.

March 8, 1999

Joyce Miller Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 37

FSCO A97-001629

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ELHAM RAYMOND (Formerly Elham El Hitti)

Applicant

and

HALIFAX 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. Halifax shall pay Mrs. Raymond weekly income replacement benefits pursuant to subsection 7(1) of the Schedule from December 5, 1994 to March 15, 1995, from May 20, 1995 to July 31, 1995 and from March 30, 1996 ongoing.

2. Pursuant to paragraph 10(3)(b) of the Schedule, Halifax shall deduct from the weekly income replacement benefit of $267.54 payable to Mrs. Raymond, 90 per cent of the net income received by Mrs. Raymond for the period December 5, 1994 to March 15, 1995 in respect of employment subsequent to the accident.

3. Halifax shall pay Mrs. Raymond a special award of $3,500 inclusive of interest.

4. Halifax shall pay Mrs. Raymond interest on amounts owing pursuant to section 68 of the Schedule.

5. Halifax shall pay Mrs. Raymond her expenses incurred in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act.

March 8, 1999

Joyce Miller Arbitrator

Date

If the arbitrator finds that an insurer has unreasonably withheld or delayed payment, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

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 and 463/96. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule" refers to the original O.R. 776/93, and "1995 Schedule" refers to O.R. 776/93 as amended.
2. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
3. 3It appears from Dr. Dworkin's clinical notes and records that she has seen him approximately 25 times since the termination of her benefits on March 29, 1996.
4. 4Section 7(1) of the Schedule provides that an insured person who sustains an impairment is entitled to a weekly income replacement benefit if: The insured person was employed at the time of the accident and, as a result of and within two years of the accident, suffers a substantial inability to perform the essential tasks of that employment.
5. 5Quattrocchi and State Farm Mutual Automobile Insurance Co. (OIC A-006854, September 29, 1997)
6. 6Bertsoukiis and Liberty Mutual Fire Insurance Company(Appeal P-006499, May 28, 1996, at p.7)
7. 8Section 282(10) provides that:
8. 9Plowright and Wellington Insurance Company (OIC A-003985, October 29, 1993)
9. 10Hernandez and Zurich Insurance Company (FSCO A96-001123, August 28, 1998)
10. 7The issue of causation has been addressed in a number of arbitration decisions. The general consensus of these decisions is that an accident need not be the sole cause of an applicant's continuing problems. The test is whether the accident "significantly" or "materially" contributed to the applicant's disability. For example, Pisani and Simcoe & Erie General Insurance Company and Canadian General Insurance Company (OIC P-0003929 & P-005693, December 11, 1995); Worku and Co-operators General Insurance Company (OIC A-002172, August 29, 1996); Aguilar and Allstate Insurance Company of Canada (OIC A-000542, April 21, 1995) upheld on appeal; Edwards and State Farm Mutual Automobile Insurance Company (OIC A-001707, July 12, 1993) under appeal; MacNeill and Royal Insurance Company of Canada (OIC A-000057, January 10, 1994) under appeal; Shelley P. and Royal Insurance Company of Canada (OIC A-002235 and A-008498, February 9, 1994 and June 22, 1995); P.S. and Toronto Transit Commission(Markel Insurance) (OIC A-001116, May 4, 1994) under appeal; Tiwana and Allstate (OIC A-950155, February 13, 1996); Furtado and York Fire & Casualty Insurance Company (OIC A-008927, June 22, 1995) under appeal; and Mladenovic and Dominion of Canada General Insurance Company (OIC A-008849, September 11, 1995), under appeal.