Neutral Citation: 1999 ONFSCDRS 70

FSCO A97-001946

BETWEEN:

MARIA N. JIMENEZ

Applicant

and

CUMIS GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Judith Killoran

Heard:

March 9, 10 and 11, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mark Baker for Mrs. Jimenez

Elizabeth Cummins Seto for Cumis General Insurance Company

The Applicant, Maria N. Jimenez, was injured in motor vehicle accidents on September 5 and November 19, 1993. She applied for and received statutory accident benefits from Cumis General Insurance Company ("Cumis"), payable under the Schedule.¹ Cumis terminated weekly benefits on January 30, 1997. The parties were unable to resolve their disputes through mediation, and Mrs. Jimenez 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 Mrs. Jimenez entitled to weekly benefits under subsection 13(8)(b) of the Schedule after January 30, 1997?
Is Mrs. Jimenez entitled to interest on any amounts owing?
Is Mrs. Jimenez entitled to her expenses incurred in this arbitration proceeding?

Mrs. Jimenez is not entitled to weekly benefits after January 30, 1997.
The issue of expenses may now be spoken to.

Background

Mrs. Maria N. Jimenez was in two motor vehicle accidents, the first on September 5, 1993 and the second on November 19, 1993. On September 5, 1993, her vehicle was hit in the rear while stationary. On November 19, 1993, she was standing on a streetcar island looking eastbound to see if any cars were approaching. Mrs. Jimenez' recollection is that she woke up on the street and thought she had fallen down. However, she had been hit by a car and suffered major trauma, which included fracturing of her left hemipelvis including the sacroiliac joint, extensive ligamentous injury to both knees, a deep laceration to her right leg and widespread abrasions and bruising. Mrs. Jimenez was taken by ambulance to The Toronto Hospital, Western Division, where she remained for two and a half weeks until she was transferred to St. Bernard's Convalescent Hospital. She remained there until January 25, 1994.

Test for Entitlement

During the first 156 weeks of disability, non-earners need only establish that they suffer a substantial inability to perform the essential tasks in which they would normally engage. The test for entitlement becomes more stringent after the first 156 weeks of disability. After 156 weeks, the onus is on the applicant to establish that the injuries from the accident continuously prevent him or her from engaging in substantially all of the activities in which he or she would normally engage.

In Zurich Insurance Company and C.L.,² Director's Delegate Draper adopts the test outlined by Arbitrator Joachim in Marchildon³ to interpret subsection 13(8)(b):

While the pre-156 test focuses only on essential tasks, the post-156 test focuses on substantially all activities in which the insured would normally engage. Thus, an applicant must establish inability, not only with respect to his or her essential tasks, but with substantially all the activities in which he or she would normally engage. The degree of functional impairment is also stricter. Pre-156, the applicant must establish that he or she suffers a substantial inability to engage in the essential tasks. Post-156, the applicant must establish that he or she is continuously prevented from engaging in the relevant activities. While the post-156 test is strict, it should not be read so strictly as to make it virtually impossible for anyone to qualify. In cases such as the present one, where pain is the primary factor which allegedly prevents the Applicant from engaging in her former activities, the question is not whether the Applicant can physically do these activities, but whether the degree of pain she experiences, either at the time, or subsequently, is such that she is practically prevented from engaging in those activities.

In this case, Mrs. Jimenez alleges that it was the degree of pain coupled with psychological factors, such as depression, chronic pain syndrome and symptoms of post-traumatic stress syndrome, which practically prevent her from engaging in her former activities.

Pre-Accident Medical Condition and Activities:

Evidence of Mrs. Jimenez and Mr. Zapata

Mrs. Jimenez is a forty-one year old woman who came to Canada from Colombia on December 3, 1987. She has lived with Antonio Zapata for approximately 10 years. Mrs. Jimenez' first job when she arrived in Canada was looking after her sister-in-law's children. She had a number of jobs, including working at Window Magic, at a bakery, in a hotel as a cleaning lady and for Service Master cleaning offices and warehouses.

Mrs. Jimenez testified that before her motor vehicle accidents, she worked, studied and enjoyed a normal social life. She moved in with Mr. Zapata in 1990 after he had a motor vehicle accident which left him paralysed in a wheelchair. Mrs. Jimenez did all the household chores, including cleaning, laundry, vacuuming, washing windows, buying groceries and meal preparation. She was responsible not only for her own personal care but also for that of Mr. Zapata.

Mr. Zapata's testimony was consistent with that of Mrs. Jimenez. He described the years from 1990-1993 when he was confined to a wheelchair and Mrs. Jimenez was a "strong lady" who did all the heavy cleaning, cooking and laundry and helped him with his personal care. At the same time, Mrs. Jimenez was working for a cleaning company, driving her car, playing sports and attending social activities.

On September 5, 1993, Mrs. Jimenez' vehicle was hit in the rear and she suffered from injuries to her neck, back and left side. She left work due to her injuries but continued studying English at George Brown College. According to Mrs. Jimenez, the pains in her neck and back were very sharp and prevented her from working and doing most of the housework. However, she attended physiotherapy and was slowly improving. Mrs. Jimenez felt that she was recovering and could soon return to work.

On November 19, 1993, Mrs. Jimenez left George Brown College at lunchtime, turned left at College and Spadina and crossed to stand on the streetcar island. She looked to the right and saw a white car and a bicycle. That is her last memory. Apparently, she was hit by a car and was taken by ambulance to The Toronto Hospital (Western Division). Mrs. Jimenez had the impression that she was unconscious for a period of time although this perception is not confirmed by the ambulance or hospital reports.⁴

Post-Accident Medical Condition and Activities

When Ms. Jimenez was discharged from St. Bernard's Convalescent Hospital, she went to stay with her niece who took care of her. The day she was discharged from St. Bernard's, the report noted that she could walk well with or without a cane and was capable of attending to all her personal needs.⁵ Mrs. Jimenez' family doctor, Dr. Mendez, sent her to therapy and prescribed Tylenol 3 for the pain. Mrs. Jimenez attended Royal Rehab until August 1994. From November 1994 to March 1995, she attended Accident Rehabilitation Centre.

By 1995, Ms. Jimenez tried to return to her old activities but was unable to do so. She could not sweep or mop or vacuum and could only do some cooking if she sat on a chair. Mrs. Jimenez testified that she requires assistance from Mr. Zapata to the present even for personal care, such as bathing. Mrs. Jimenez began wearing a brace on her leg in 1994 or 1995 because her knee was not strong enough for long walks. She goes grocery shopping but she is not able to push the buggy due to pains in her knee, pelvis and back. Mrs. Jimenez has received help either from Mr. Zapata, her niece or a homecare aide. Mrs. Jimenez testified that her sexual activities were affected negatively due to her injuries. She said that her days were restricted to watching television, listening to music and visiting her sister-in-law.

Mrs. Jimenez indicated that she is less interested in her appearance. She can only wear wide pants because of the leg brace and is reluctant to expose her knees, which were damaged. She does not care about her hair, makeup or nails and has not driven a car since the second accident.

Mrs. Jimenez admitted that, although exercise has been recommended for her recovery, she does not swim or go for walks.

Mr. Zapata's evidence was consistent with that of Mrs. Jimenez. He testified that from 1997 to the present, he has done the housework, with some housekeeping services having been provided by Ms. Leyon Galo. Mr. Zapata commented on Mrs. Jimenez' inability to fix her hair, dress and bathe herself.

Ms. Galo testified that she did some housework for Mrs. Jimenez starting in February 1998. She helped her in the shower, changed the beds, did the laundry, and some cleaning and helped her to dress and care for herself. Ms. Galo started coming twice a week which was reduced later to once a week. She stopped performing the housekeeping chores in October 1998.

Medical Evidence:

Dr. Ileana Kirstine, a physician in family practice, saw Mrs. Jimenez for the first time as a patient on March 21, 1996. She testified about Mrs. Jimenez' recurrent panic attacks, poor sleep, suicidal thoughts and phobias. Mrs. Jimenez appeared to suffer from significant pain when walking, while, at the same time, feeling depressed and frustrated at not being able to perform her daily activities. As well, her relationship with her husband was negatively affected by her medical difficulties. Dr. Kirstine referred Mrs. Jimenez to other physicians, specializing in both orthopaedic and psychological problems.

(a) Orthopaedic

Dr. Kirstine diagnosed Mrs. Jimenez with two major difficulties: chronic pain and psychological problems. She referred Mrs. Jimenez to Dr. Cameron, an orthopaedic surgeon, in the summer of 1996 and his opinion was that more extensive surgery on her knee would not be a good idea. Dr. Kirstine testified that Mrs. Jimenez had difficulty with regular chores, such as doing the laundry, and that, as a result of having her knee buckle while she showered, she was afraid to shower alone. Dr. Kirstine based her opinion on observations of Mrs. Jimenez in the examining room, where she was slow to get undressed and had difficulty getting up on the examination table.

Dr. Pierre Kirwin, a physiatrist, first saw Mrs. Jimenez on September 11, 1995. Based on his testing and her responses, Dr. Kirwin concluded that she was suffering from athralgis and instability in her right knee, bursitis and fascitis in her left hip, inflammation of the coccyx, cervico-myofascial strain, and post-traumatic headaches with non-specific abdominal pain. Mrs. Jimenez' functional level was quite limited as she had multiple complaints and expressed a fair amount of discomfort while in his office. Dr. Kirwin suggested swimming and hydrotherapy to maintain her fitness level.

On November 10, 1995, Mrs. Jimenez visited Dr. Kirwin for the second time. There was tenderness in her tailbone and a painful response with very minimal pressure. On December 11, 1995, at her third visit, Dr. Kirwin noted no major change. Mrs. Jimenez' left thigh pain was less severe, the bone scan results were normal, but she reported neck pain. On March 6, 1996, Dr. Kirwin noted tenderness in her tailbone, left thigh area, and knees. He diagnosed chronic pain syndrome and recommended hydrotherapy and home exercise.

Dr. Kirwin testified that Mrs. Jimenez' pain was out of proportion with her known pathophysiology and interfered with her ability to carry out her daily activities. In his opinion, Mrs. Jimenez would have difficulty with washing floors, vacuuming, shovelling snow, and taking out the garbage. His prognosis for her was poor as he did not expect to see any substantial improvement in her condition.

On August 18, 1998, when Dr. Kirwin examined Mrs. Jimenez, he found normal stability in both knees and normal muscle, bulk, power and tone in her legs. He recommended more regular exercise but was not confident that would result in a substantial change in function. Mrs. Jimenez exhibited a full antigravity range of motion and quite close to normal responses in her legs. Dr. Kirwin admitted that there was nothing physically wrong with Mrs. Jimenez that would prevent her from returning to her former activities except for her reports of pain. He stated that Mrs. Jimenez' orthopaedic injuries, the fractures of her pelvis and back, had healed completely by November 1995.

Dr. Langer, a specialist in orthopaedic surgery who now practises almost exclusively in medico-legal work, was called by Cumis. He examined Mrs. Jimenez in September 1998 and took the history of her two motor vehicle accidents from her. He understood that prior to the accidents she was in perfect health. He pointed out that the notes from St. Bernard's Convalescent Hospital indicated that when she was discharged, she was ambulatory and capable of normal activities, such as bathing and dressing herself.

Dr. Langer's prognosis was that within 6 to 12 months, Mrs. Jimenez would have returned to normal activities. He would have expected her right knee to be a problem but one with which she could cope. Dr. Langer indicated that he would have anticipated that Mrs. Jimenez would experience some aching in the knee with certain activities and with changing weather conditions. He saw no physical reason for the severity of her pain complaints. He noticed no muscle atrophy in the legs, confirming to him that Mrs. Jimenez continued to be active. Dr. Langer found no physical disability preventing Mrs. Jimenez from washing dishes, cooking and working at a sedentary job. He found no evidence of true serious disability despite Mrs. Jimenez' complaints.

Dr. Langer testified that as there was no marked instability of the joint, Mrs. Jimenez does not need to use her leg brace. His diagnosis was a partial permanent disability due to right knee pain and instability and low back pain. He admitted that Mrs. Jimenez may always experience some residual pain, particularly with the right knee.

(b) Psychological

Dr. Kirstine admitted that Mrs. Jimenez occasionally makes her pain look a little worse than it is. In her view, both the physical and the psychological are intertwined to prevent Mrs. Jimenez from doing those things she did before the accident. Dr. Kirstine was not prepared to say that Mrs. Jimenez' present condition would improve significantly. In her view, Mrs. Jimenez needs to be returned to the community but before that can happen, the issue of her depression must be addressed. Dr. Kirstine specified that Mrs. Jimenez' most prominent complaints were chronic pain, inability to do things and move around, lack of concentration, and depression.

Dr. Kirstine testified that if Mrs. Jimenez' description of her pain level were accurate, she would require a stronger painkiller than Tylenol 3, which is the only painkiller that she has taken since the accident. She said that it should not hurt Mrs. Jimenez to sweep the floor or do the laundry with help. Although Dr. Kirstine believed that there would be some degree of pain and difficulty involved, psychological factors are also holding back Mrs. Jimenez. Dr. Kirstine expressed the opinion that Mr. Zapata should not have to bathe Mrs. Jimenez. She believes that Mrs. Jimenez can become more mobile, if she learned to do physical activities more slowly.

Dr. Judith Pilowsky, a psychologist specializing in psychological trauma, first examined Mrs. Jimenez in February 1997. She conducted an in-depth interview and psychological testing. Her understanding was that prior to the second accident, Mrs. Jimenez had recovered to a large degree from the effects of the first accident, except for some neck pain. In February 1997, Dr. Pilowsky found that Mrs. Jimenez had neck and pelvis pain, weakness in the right knee, some numbness and physical malaise. She also had chronic insomnia, disturbed sleep, fluctuations in appetite, problems with her short-term memory and suicidal feelings. Mrs. Jimenez felt victimized, her sexual interest had disappeared, she was socially withdrawn and unable to overcome her pain and distress.

Dr. Pilowsky testified that Mrs. Jimenez displayed a constellation of symptoms in the form of depression and anxiety. On her pain perception test, she was in the dysfunctional category as her pain greatly interfered with her ability to function. Dr. Pilowsky relied on self-reporting, testing and her own clinical impression of the client to arrive at these conclusion. She diagnosed Mrs. Jimenez with post-traumatic stress symptoms, a phobia about crossing the street, and a pain disorder which interfered with her ability to function.

On January 12, 1999, Dr. Pilowsky found that Mrs. Jimenez' depression level had worsened but that her anxiety had decreased because she was avoiding going out of the house. Mrs. Jimenez had a bleak view of the future and was unable to participate in her usual activities.

Cumis submitted the report of Dr. Margulies, a psychiatrist who saw Mrs. Jimenez on January 20, 1999.⁶ Dr. Margulies challenged Mrs. Jimenez' description of herself prior to the accident as an independent individual with a wide circle of friends. He considered her level of adaptation and functioning to be marginal before the accident as she was frequently out of work, receiving social assistance payments and had been living in assisted housing since about 1990.

Dr. Margulies described Mrs. Jimenez as emotionally disturbed, highly needy and dependent. In his opinion, Mrs. Jimenez consciously overstated, exaggerated and distorted her symptoms for self-serving purposes. He diagnosed Mrs. Jimenez as having a pain disorder with physical and psychological factors. Dr. Margulies reported that although Mrs. Jimenez may have developed some symptoms of post-traumatic stress disorder, she did not suffer from post-traumatic stress disorder.

Dr. Pilowsky agreed with Dr. Margulies' diagnosis that Mrs. Jimenez does not suffer from post-traumatic stress disorder. However, she expressed serious disagreement with some aspects of Dr. Margulies' report. Dr. Pilowsky pointed out that Mrs. Jimenez may have experienced communication problems because Dr. Margulies relied on an interpreter. Dr. Pilowsky diagnosed Mrs. Jimenez' symptoms as part of her problem with depression and chronic pain making her condition more difficult. She testified that there was no substantiation for Dr. Langer's diagnosis that there was an underlying and pre-existing pattern of somatisation as Mrs. Jimenez had no history of multiple visits to hospitals or doctors. Dr. Pilowsky also responded to the concerns of Dr. Margulies and Dr. Langer that Mrs. Jimenez had an exaggerated pain response by pointing out that medicine is not an exact science and assessing pain is something about which little is known.

Although Dr. Pilowsky agreed that exercise and doing household chores would be good for Mrs. Jimenez, she stated that knowing what is good for us and being motivated to do it are two very different things. Chronic illnesses have a difficult prognosis, some people never recover and sometimes spontaneous remissions occur. Dr. Pilowsky stated that although Mrs. Jimenez' physical symptoms may not prevent her from doing such things as bathing and sweeping, her psychological state of depression does prevent her from doing these things.

ANALYSIS AND CONCLUSIONS:

Subsection 13(8)(b) of the Schedule which requires that Mrs. Jimenez' injuries "continuously prevent her from carrying out substantially all her activities"imposes a stringent test. In Zurich and C.L.,⁷ Director's Delegate Draper agrees with the analysis in Urquhart,⁸ followed in Sheppard,⁹ that any qualitative analysis of the person's ability to engage in an activity must be done against the backdrop of the ultimate question, whether he or she is continuously prevented from engaging in that activity. Mrs. Jimenez relied on Ms. G. and Allstate¹⁰ which differed substantially from her case since in Ms. G, the applicant suffered from a head injury.

Dr. Kirwin, a physiatrist called by Mrs. Jimenez, testified that there was "normal muscle, bulk, power and tone" in her legs. He agreed that if Mrs. Jimenez were not active at all, her muscles would atrophy. Dr. Kirwin's finding suggests that Mrs. Jimenez was engaging in a greater level of activity than she perceives or admits to. Although Ms. Galo testified about providing some housekeeping and personal care assistance, this was for limited periods of time - twice a week for two hours at a time, then once a week for three hours at a time. Ms. Galo said that Mrs. Jimenez took the transit to see the doctor and she sometimes went on walks with her. I find that someone who is continuously prevented from engaging in substantially all her activities would require more than a few hours of assistance a week. As well, Mrs. Jimenez was alone for long periods of time when her husband travelled to Honduras. She was also capable of travelling alone to Colombia to visit her family.

I accept the medical evidence that Mrs. Jimenez is more active than she may perceive herself to be. However, both Dr. Kirstine and Dr. Pilowski offered compelling testimony that Mrs. Jimenez suffers from symptoms of post-traumatic stress syndrome, chronic pain and depression. The medical experts agreed that Mrs. Jimenez suffered a loss of function in her right knee, which together with her other injuries was the source of chronic pain syndrome. This moved her problems out of the ambit of the purely physical to the psychological, emotional and social.

Statutory accident benefits do not compensate applicants for pain and suffering, or the loss of enjoyment of life. Hence, the diagnoses of chronic pain syndrome, depression and symptoms of post-traumatic stress syndrome, in and of themselves, do not guarantee entitlement to weekly benefits.

I do not find on the evidence, that Mrs. Jimenez was continuously prevented from carrying out substantially all of her activities. It may be that her housekeeping abilities continue to be impaired. However, even her family doctor, Dr. Kirstine, said that it would be good for Mrs. Jimenez to participate in more of the household chores, albeit, at a slower pace. Dr. Kirstine was surprised to learn that Mrs. Jimenez' husband helped her with personal care such as bathing. Dr. Kirstine confirmed that only Tylenol 3 has been prescribed for Mrs. Jimenez and indicated that if the pain were as debilitating as described, a stronger painkiller would be required. Mrs. Jimenez' fractures had healed and stabilized as of 1995.

It appears from the evidence that Mrs. Jimenez was not referred to a psychiatrist or prescribed anti-depressants until December 1998,¹¹ just three months prior to this arbitration hearing and five years after the accident. Certainly, if Mrs. Jimenez were incapacitated by depression due to the accident, a referral to a psychiatrist earlier than 1998 might have been expected.

Based on the evidence, I find that Mrs. Jimenez does not meet the test for entitlement to weekly benefits under subsection 13(8)(b) of the Schedule. Although Mrs. Jimenez' ability to engage in many activities has been impaired, she does not suffer from such a degree of impairment as to continuously prevent her from engaging in substantially all of her former activities.

EXPENSES:

The question of expenses was not addressed at the hearing. I may be spoken to if the parties are unable to reach an agreement on this issue.

April 28, 1999

Judith Killoran Arbitrator

Date