Neutral Citation: 1999 ONFSCDRS 91

FSCO A98-000649

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

NORMA P. LEWIS-LAMOUREUX

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Shari L. Novick

Heard:

February 1 and 2, 1999, in Ottawa, Ontario.

Appearances:

Roger Button for Ms. Lewis-Lamoureux

Stephen J. Cavanagh for Zurich Insurance Company

Issues:

The Applicant, Norma Lewis-Lamoureux, was injured in a motor vehicle accident on August 2, 1993. She applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich terminated the weekly income benefits on November 28, 1993, when the Applicant returned to work on a full-time basis. After her return to work, the Applicant continued to experience symptoms which caused her to miss one or two days of work each month on a regular basis.

Ms. Lewis-Lamoureux took an unpaid leave of absence from work from mid-October until the end of December, 1997 to participate in a physiotherapy program at the Canadian Back Institute. Zurich paid the Applicant weekly income benefits during the seven weeks of this program, but did not pay her for the three and one-half weeks between the end of the program and her return to work in early January.

Ms. Lewis-Lamoureux continued to be absent for one or two days each month throughout 1998. She claims that she was substantially unable to perform the essential tasks of her employment during these times, and that she is therefore entitled to receive benefits for the days in question. The Insurer disagrees. The parties were unable to resolve their disputes through mediation, and Ms. Lewis-Lamoureux 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:

1. Is Ms. Lewis-Lamoureux entitled to weekly income benefits for the days that she was unable to work after August of 1997 as a result of injuries she sustained in the accident?

2. Is Ms. Lewis-Lamoureux entitled to receive weekly income benefits for the period from December 5 to December 31, 1997?

3. Is Ms. Lewis-Lamoureux entitled to a special award pursuant to section 282(10) of the Insurance Act?

Ms. Lewis-Lamoureux also seeks interest on any amounts found to be owing, as well as her expenses of this arbitration.

Result:

1. Ms. Lewis-Lamoureux is not entitled to receive weekly income benefits for the days that she was unable to work after August of 1997.

2. Ms. Lewis-Lamoureux is not entitled to income benefits for the period from December 5 to December 31, 1997.

3. Ms. Lewis-Lamoureux is not entitled to a special award.

EVIDENCE AND ANALYSIS:

Background:

Ms. Lewis-Lamoureux was injured in an accident on August 2, 1993 when her vehicle was rear-ended by a truck while she was stopped at a stoplight. She began to feel pain and stiffness in her neck and right shoulder the following day, and went to the hospital where she was given a cervical collar and prescribed pain medication. She saw her family doctor a few days later, who diagnosed a whiplash injury.

Ms. Lewis-Lamoureux has been employed in the security department at Carleton University since 1990. At the time of the accident she worked as a campus police officer. She was unable to return to work for a few weeks after the accident as a result of the injuries she suffered. She attempted to return to work in September, but was not able to complete her shift. In October of 1993 she began an intensive six-week physiotherapy program at the Canadian Back Institute in Ottawa, and worked half days during the last two weeks of the program.

The Applicant returned to full-time work in late November 1993, but was absent one day each month during the first half of 1994 and two or three days each month from July through October of that year as a result of her injuries. She took maternity leave from November 1994 until the end of May 1995, after which she continued to take one or two days off each month as a result of her injuries from the accident.

By August of 1997 Ms. Lewis-Lamoureux had accumulated a significant deficit in her "sick leave bank" at work as a result of her accident-related absences. Zurich agreed to pay her employer the equivalent dollar amount of the negative sick leave balance that she had accumulated, bringing the deficit in her sick leave "bank" down to zero.

The Applicant continued to experience symptoms after this payment was made, resulting in further absences from work. As set out above, she took an unpaid leave of absence from work from mid-October until the end of December 1997 in order to pursue a six-week physiotherapy program at the Canadian Back Institute in Cornwall.

The relevant legislation:

Subsection 12(1) of the Schedule requires the Insurer to pay weekly income benefits to an insured who sustains an injury as a result of an accident during the period in which she suffers a substantial inability to perform the essential tasks of her occupation or employment, subject to certain general conditions. In most cases, an insured person claims entitlement to benefits for a continuous period of weeks or months, as opposed to the miscellaneous days that Ms. Lewis-Lamoureux is claiming for in this case.

Section 15 of the Schedule permits an insurer to deduct post-accident income from benefits that are payable. It reads as follows:

15. The insurer may deduct from any benefit payable under this Part 80 per cent of any income received or available from any occupation or employment subsequent to the accident.

A temporary return to work is contemplated by section 16 of the Schedule, the relevant parts of which read as follows:

16.(1) ....a person receiving a benefit under this Part may attend school or accept, or return to, work at any time during the first two years following the accident for any period of time without affecting his or her benefits under this Part if, as a result of the accident, he or she is unable to continue at school or in the occupation or employment.

16.(2) ...after the two year period referred to in subsection (1), a person receiving a benefit under this Part may attend school or accept, or return to, an occupation or employment for periods of up to ninety days without affecting his or her benefits under this Part if he or she, as a result of the injury, is unable to continue at school or in the occupation or employment.

Essential tasks of her employment:

Ms. Lewis-Lamoureux works as a campus police officer at Carleton University. Her main duties include patrolling the campus by car and on foot and responding to emergency calls involving medical or criminal emergencies and safety hazards. She explained that all campus security officers were provided with police powers when responding to calls on campus in 1996, and that they now have the power to make arrests. Officers are also required to complete reports and other paperwork, direct traffic and perform "dispatch duty" on occasion.

The Applicant testified that she works twelve-hour shifts on four consecutive days, and then has four days off. She also works overtime hours when required. She explained that the collective agreement governing her employment relationship provides for the accumulation of 12 hours of sick leave credits for each month of service, and that if more sick leave is used than has been accumulated, the extra time off may be deducted from her vacation time. When asked whether deductions would be made from an employee's pay if sick time taken exceeded the credits accumulated, the Applicant stated that that was not generally done, and that employees are permitted to keep a negative balance running.

Ms. Lewis-Lamoureux explained that she wears a duty belt during the course of her shift. Various items such as a large set of keys, a steel baton, handcuffs, a two-way radio, medical gloves and a notebook are attached to her belt.

The medical evidence:

Dr. Therese Hodgson, the Applicant's family doctor, and Dr. Hans Uhthoff, an orthopaedic surgeon, testified on behalf of Ms. Lewis-Lamoureux. The Insurer relied on a report from Dr. M. Baxter, an orthopaedic surgeon who performed an Independent Examination on the Applicant, and on other medical reports filed by Ms. Lewis-Lamoureux. I will only provide an outline of the medical evidence tendered as for the most part, it is not determinative of the issues before me.

Dr. Hodgson diagnosed a whiplash injury and testified that the Applicant continued to complain of pain at the base of her skull and between her shoulder blades on a daily basis in July of 1996, three years after the accident. She stated that in the five years during which she treated Ms. Lewis-Lamoureux for these injuries, she prescribed various muscle relaxants and anti-inflammatory medication in an effort to manage her pain. She explained that the Applicant experienced regular "flareups" of her symptoms, during which she was unable to work.

Dr. Hodgson opined that as the Applicant continued to suffer from the symptoms described more than five years after the accident, it was not likely that they would improve. She also stated that she suspected that Ms. Lewis-Lamoureux would continue to experience "flareups" of her symptoms for an indefinite period of time.

An MRI was performed on Ms. Lewis-Lamoureux in May of 1997, which revealed a protruded disc in the lower part of her cervical spine.

A multi-disciplinary DAC assessment conducted in September and October of 1997 concluded that Ms. Lewis-Lamoureux did not require any further physiotherapy treatments and recommended that she perform some strengthening exercises on her own at home.

Dr. Baxter examined the Applicant in October of 1997. She diagnosed chronic pain and headaches and opined that Ms. Lewis-Lamoreux was not at that time suffering from an impairment caused by the accident that resulted in a substantial inability to perform the duties of her employment.

Dr. Hans Uhthoff examined Ms. Lewis-Lamoureux at the request of her counsel in December of 1998. He testified that x-rays of the Applicant's spine revealed degenerative disc disease in her lower cervical spine. He recommended that a CT mylegram be performed, the results of which revealed a herniated disc at level C6-C7. Dr. Uhthoff explained that a disc herniation indicates a higher degree of disc displacement than a disc protrusion. Based on these results, he opined that the chance of her symptoms resolving at this point in time was very slim.

Dr. Uhthoff also testified that while Ms. Lewis-Lamoureux' condition would not prevent her from working, it would likely lead to her taking occasional absences from work.

Treatments and rehabilitative efforts:

Ms. Lewis-Lamoureux has made extensive efforts to reduce her pain and manage her symptoms since the accident. She began a course of physiotherapy shortly after the accident, initially attending on a daily basis. In October of 1993 she began a more active six-week physiotherapy program at the Canadian Back Institute in Ottawa, which unfortunately did not reduce her symptoms of neck pain, headaches and pain at the base of her skull. In 1994 her family doctor referred her to a chiropractor. She received weekly chiropractic treatments from July to October of that year, and reported that while these initially provided her with some relief, there was no permanent improvement in her condition.

The Applicant testified that when she returned to work after her maternity leave in May of 1995, she continued to experience the same symptoms as she had prior to going off on leave. In 1996 she sought treatment for her pain from an osteopath. She received several cortisone injections but reported that these did not reduce her pain. In 1997 she began a new course of physiotherapy and consulted with a doctor who recommended that she try glucose injections. She attempted these, but found once more that they did not offer any relief. When her symptoms intensified in the fall of that year, she took a three-month leave of absence from work, during which she pursued a six week full-time physiotherapy program at the Canadian Back Institute in Cornwall. She reported that at the completion of the program she still felt pain at the base of her skull and in her right shoulder, and that she continued to experience headaches.

In August of 1998, Ms. Lewis-Lamoureux began an aggressive form of acupuncture, known as intramuscular stimulation or IMS. She explained that a physiotherapist administers injections into her muscles when they are in spasm, and that she attends for this treatment on a weekly basis. The Applicant stated that the injections have been effective in relieving the pain in her shoulders.

Extent of Applicant's disability:

Ms. Lewis-Lamoureux returned to work on a full-time basis in late November of 1993. She worked until the following November, at which time she began a six-month maternity leave. She reported that when she returned to work after her leave in May of 1995, she continued to feel pain on a regular basis at the base of her skull and in her shoulders. She explained that the shoulder pain varied with the degree of her arm movement while at work. Ms. Lewis-Lamoureux testified that she continues to experience "flareups" which she described as muscle spasms in her shoulders that lead to severe pain which prevents her from sleeping or walking. She rated the pain she experiences during a "flareup" as being eight out of a possible ten.

When asked about the effect of her continued symptoms on her ability to work, Ms. Lewis-Lamoureux explained that the pain that she experiences often prevents her from sleeping at night and therefore affects her ability to report to work alert and on time. She stated that due to the pain she feels when she moves in a certain way, she is sometimes not able to reach for her radio or other equipment that she wears on her belt. She testified that she is required to participate in one day of training each year involving combative exercises consisting of hand-to-hand fighting, and using batons and handcuffs, and explained that she usually wakes up in severe pain the following day.

The Applicant stated that she finds various driving positions to be painful. She explained that turning her head while she is patrolling by car causes an increase in her neck pain, and that completing paperwork while sitting in her vehicle is painful as she must keep her head down while doing so. She explained that if she is on foot patrol and comes across something that scares her, her muscles will tense up and become sore.

Ms. Lewis-Lamoureux testified that her current symptoms include constant pain at the base of her skull, restricted movement down her spine from muscle spasms in her neck and shoulder area and occasional "flareups."

When asked about her condition during the three and one-half week period in December of 1997 after she had completed the CBI program, the Applicant responded that she continued to experience problems with her shoulders and hip during that time and that she was not able to return to work because she had not gained control over her pain. She admitted that despite still not gaining control of her pain, she returned to work on January 1, 1998.

Payments by the Insurer:

The Applicant regularly missed one or two days of work each month as a result of her injuries during 1994 and in 1995 after returning from maternity leave. Her absenteeism increased in 1996 and through the first half of 1997, resulting in a negative balance in her sick leave "bank." Ms. Lewis-Lamoureux testified that she had several conversations with the insurance adjuster at Zurich about "getting covered" for her sick leave, and that Zurich ultimately issued a cheque to her employer in July of 1997 for just over $1,300, to compensate for a negative sick leave balance of 71 hours that she had accumulated.

The Applicant continued to be absent for a few days each month over the late summer and fall of 1997. She was absent for 15 days in 1998, and one day in 1999 prior to the hearing which began on February 1. She stated that she had accumulated a negative balance of 83 hours in her sick leave account, but that no deductions had been made from her pay.

ANALYSIS AND FINDINGS:

After reviewing the medical evidence, I am persuaded that Ms. Lewis-Lamoureux continues to experience symptoms related to the injuries she sustained in the accident more than five years ago. Her family doctor and other medical professionals she has consulted have diagnosed her as suffering from a whiplash injury or myofascial pain syndrome. She has recently been diagnosed with degenerative disc disease, and the weight of the medical evidence suggests that this can be traced back to the accident.

The Applicant reports continuing pain at the base of her skull and that she occasionally experiences disabling muscle spasms in her neck and shoulders. The general prognosis is that these symptoms will likely not improve, as they have persisted for well over five years after the accident. I found Ms. Lewis-Lamoureux to be a credible witness who presented her evidence in a forthright, thorough and honest manner. However, as stated above, Ms. Lewis-Lamoureux' entitlement to benefits for the various days that she did not attend work does not ultimately depend on the medical evidence tendered, or her evidence regarding her level of disability.

Assorted sick days from August of 1997 to present:

Ms. Lewis-Lamoureux claims benefits amounting to the monetary equivalent of the 83 hours of sick leave that she has taken that exceed the sick leave credits that she has accumulated from August of 1997, when Zurich made a payment to her employer, to the present. While a claim for income benefits usually involves weeks, months or even years of disability, subsection 12(1) is worded broadly, providing for benefits to be paid "during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment." The use of the phrase "the period" as opposed to "the week" or some other term suggesting a set time frame leads me to conclude that benefits can be claimed for miscellaneous days or hours of work missed as long as an applicant meets the threshold set out.

Counsel for the Applicant referred to the decision in Bland and Allstate Insurance Company of Canada (FSCO A97-001471, December 16, 1998) as authority for the proposition that an applicant can qualify for income benefits after he has returned to full-time employment, if symptoms related to the accident prevent him from attending work on various subsequent days. The Insurer contended that Ms. Lewis-Lamoureux was not disabled to the extent required in order to be entitled to benefits under the Schedule, as she had returned to full-time employment over five years ago and worked overtime when required to, with only occasional absences.

I am prepared to accept, as Arbitrator Palmer did in Bland, that an applicant can experience lingering symptoms on an occasional basis after a return to full-time work that render her substantially unable to perform the essential tasks of her employment on certain days. I am persuaded that Ms. Lewis-Lamoureux was substantially unable to perform the essential tasks of her job as a campus police officer on the days in question and, therefore, meets the test for entitlement to benefits under subsection 12(1) of the Schedule. However, as discussed below, the application of section 15 of the Schedule precludes her from recovering any further benefits.

Section 15 of the Schedule permits an insurer to deduct 80 per cent of an applicant's post-accident income from any benefit found to be payable. The parties agree that the weekly benefit payable to the Applicant, before factoring in the section 15 deduction, is $568.40. The evidence indicated that her gross weekly income is $737.34, 80 percent of which would amount to $589.91. Since this amount is greater than the benefit payable, the operation of section 15 reduces the weekly benefit payable to zero.

Counsel for the Applicant contended that Ms. Lewis-Lamoureux income should be grossed up by the dollar equivalent of her sick leave entitlement to reflect the fact that she is permitted to take the allotted number of sick days without penalty. I cannot accept this argument. While the value of some employment benefits, such as extended health benefit plans, have been quantified and included in the calculation of an applicant’s income,² in my view entitlement to sick leave without loss of pay is different. An employee who makes use of this benefit merely receives time off without penalty, as opposed to something of extra value that increases his or her income. In any event, even if an amount reflecting the value of this benefit was added to Ms. Lewis-Lamoureux' income, the effect of the operation of section 15 of the Schedule would still result in her not being entitled to any further benefits.

The Insurer argued that subsection 12(4)(b)ii of the Schedule requires that any sick days taken by the Applicant be deducted from the weekly benefit amount calculated. I disagree with this approach as well. The Applicant's sick leave entitlement under the collective agreement provides her with paid time off in the event of illness. Subsection 12(4)(b)ii provides that payments received by an employee for loss of income received under any sick leave plan be deducted from the 80 percent of gross income figure when calculating the amount of the weekly benefit to which an insured is entitled to. The earned sick leave credits that are applied against Ms. Lewis-Lamoureux' absences from work do not constitute "payments for loss of income," as would for example, short-term sickness benefits in the form of weekly payments that many employees are entitled to receive, when they are absent from work for extended periods of time.

Both the Applicant and the Insurer made submissions on the applicability of subsection 16(2) of the Schedule, which addresses a return to work more than two years after an accident. I find, however, that subsection 16(2) does not apply to the facts of the instant case. That section permits a person to return to school or work for periods of up to 90 days without affecting her right to receive benefits if, as a result of her injuries, she is unable to continue at school or in her work. There is no evidence before me to suggest that Ms. Lewis-Lamoureux cannot continue in her job as a campus police officer: on the contrary, she has been able to work, albeit with absences of a few days each month for the past five years.

Entitlement to benefits from December 5 to 31, 1997:

Ms. Lewis-Lamoureux received income benefits from the Insurer from mid-October until early December 1997 while she attended the Canadian Back Institute program in Cornwall. She was not paid benefits from December 5 to December 31 however, despite not having returned to work until January 1, 1998.

The Applicant testified that she was not able to return to work at the completion of the program because she continued to experience problems with her shoulder and hip, and had not gained control over her pain. She also commented, however, that she was in the same condition when she returned to work in January of 1998, and at the time of the hearing in February of 1999.

The discharge report from the Canadian Back Institute states that while she continued to experience some pain, she seemed better able to control it. The physiotherapist who authored the report recommended that Ms. Lewis-Lamoureux return to work and continue her pain control exercises while working.

In order to qualify for benefits during this period, the Applicant must prove that she suffered a substantial inability to perform the essential tasks of her employment. I am not satisfied that she was disabled to this extent during the last three weeks of December 1997. While she may have continued to experience pain in the areas mentioned above, she was able to return to full-time work the following month, with the same symptoms. My focus must be on the Applicant's functional limitations as they affect her essential job tasks; pain can only be considered to the extent that it limits her from performing these tasks.

Special Award:

The Applicant seeks a special award pursuant to subsection 282(10) of the Insurance Act, which requires that I award her a lump sum payment if the Insurer has unreasonably withheld or delayed payments. Counsel for the Applicant argued that the Insurer acted unreasonably in terminating Ms. Lewis-Lamoureux' benefits in December of 1997, as the medical information it had at that point suggested that the Applicant could be substantially disabled. Counsel argued that the Insurer also acted improperly by making its decision not to pay further benefits before receiving the results of the Applicant's participation in the CBI program.

I do not consider Zurich's actions during the period in question to be unreasonable. Its decision to terminate the benefits it began paying the Applicant in October of 1997 was based on the report of Dr. Baxter, which provides the opinion that Ms. Lewis-Lamoureux does not suffer an impairment caused by the accident that results in a "substantial inability to perform her duties." Despite receiving this report in late October, the Insurer continued to pay benefits until December 5. Although the Insurer was likely aware at that point that Dr. Hodgson, the Applicant's family doctor, related her ongoing symptoms and the degenerative changes in her spine to the accident, the Insurer cannot be faulted for relying on Dr. Baxter's opinion which was expressed after the most current examination of the Applicant.

I have found that Ms. Lewis-Lamoureux is not entitled to any further benefits and she is likewise not entitled to a special award.

EXPENSES:

I have not addressed the issue of expenses in this decision. Counsel may raise this issue with me if they are unable to resolve the matter between themselves.

May 26, 1999

Shari L. Novick

Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 91

FSCO A98-000649

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

NORMA P. LEWIS-LAMOUREUX

Applicant

and

ZURICH 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. Lewis-Lamoureux claim for weekly income benefits is dismissed.

2. Ms. Lewis-Lamoureux is not entitled to a special award.

May 26, 1999

Shari L. Novick

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
2. 2See Mouawad and Alpina Insurance Company, Limited, (OIC A-003226, June 30, 1994), Crevier-Lamarche and Missisiquoi Insurance Company, (OIC A96-000865, January 12, 1998) and Prouse and Non-Marine Underwriters, Mbrs. Of Lloyd's, (FSCO A98-000701, March 12, 1999)