Neutral Citation: 2000 ONFSCDRS 19

FSCO A98-001471

BETWEEN:

TERESA GARCIA

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: David Muir

Heard: August 16, 17, 18, 19, December 14, 15 and 16, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Kevin Doan for Mrs. Garcia George O. Frank for Liberty Mutual Insurance Company

The Applicant, Teresa Garcia, was injured in a motor vehicle accident on November 23, 1994. She applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ Mrs. Garcia was injured in a second motor vehicle accident on April 10, 1995. A third accident occurred on December 16, 1996. On November 16, 1997 a loss of earning capacity benefit ("LECB") offer was made to Mrs. Garcia. Mrs. Garcia requested a RECDAC which was conducted in May 1998. The RECDAC concluded that Mrs. Garcia had a residual earning capacity of $16, 675. Mrs. Garcia challenges that determination. Mrs. Garcia also seeks payment for acupuncture treatments.

The parties were unable to resolve their disputes through mediation, and Mrs. Garcia 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:

Was Mrs. Garcia entitled to an LECB offer two years following an MVA on November 23, 1994? Liberty Mutual relied upon section 29(1) of the Schedule and made an offer more than two years after an April 1995 accident.
Is Mrs. Garcia entitled to be paid for acupuncture treatments pursuant to section 36 of the Schedule?
Is Mrs. Garcia entitled to be paid a special award by Liberty Mutual pursuant to section 282(10) of the Insurance Act, on the basis that Liberty Mutual unreasonably delayed making an LECB offer to her?
Was the determination of the RECDAC that Mrs. Garcia was able to perform the work of a parking lot attendant correct? Mrs. Garcia claims that the RECDAC overestimated her functional ability. Liberty Mutual claims that the RECDAC was incorrect in its assessment that Mrs. Garcia was unable to return to her pre-accident occupation.

Mrs. Garcia was not entitled to an LECB offer two years following an MVA on November 23, 1994. Liberty Mutual was entitled to rely upon section 29(1) of the Schedule and make an offer two years after an April 1995 accident.
Mrs. Garcia is not entitled to be paid for acupuncture treatments claimed pursuant to section 36 of the Schedule.
No special award is payable by Liberty Mutual pursuant to section 282(10) of the Insurance Act.
The determination of the RECDAC that Mrs. Garcia was able to perform the work of a parking lot attendant on a full time basis was incorrect. Mrs. Garcia is able to perform the duties of a parking lot attendant on a part time basis.

Background:

At the time of the November 23, 1994 accident (the November accident), Mrs. Garcia was a homemaker and the mother of three children. She had also been employed at Galco, a chicken processor, for approximately 11 years. She was unable to return to work until late November 1995. She was assigned to light duties, but stopped working again after three weeks complaining of dizziness, fatigue, poor concentration and pain in her head and back.

In November 1996 Liberty Mutual wrote to Mrs. Garcia advising her that it was relying upon section 21(9) of the Schedule and that it would not be making an LECB offer pursuant to the claim from the November 1994 accident but at 104 weeks after the second accident on April 10, 1995.

Shortly thereafter, Liberty Mutual requested that Mrs. Garcia attend insurer's medical examinations (IMEs)in early 1997. Mrs. Garcia refused to attend on the advice of counsel. Liberty Mutual rescheduled the IMEs for later in January. Mrs. Garcia again failed to attend. Liberty Mutual terminated benefits effective January 10, 1997, pursuant to section 65 of the Schedule and took the position that Mrs. Garcia had unreasonably failed to attend the IMEs. Mrs. Garcia did attend the examinations on July 29, 1997 and benefits were reinstated from that point. Liberty Mutual did not pay benefits for the period January 10, 1997 to July 29, 1997. A dispute ensued and in an arbitration decision dated October 13, 1998, Arbitrator Jones found that Mrs. Garcia was entitled to be paid income replacement benefits for that period.²

Liberty Mutual made An LECB offer of $136.50 to Mrs. Garcia on November 27, 1997. Mrs. Garcia requested a RECDAC. Mrs. Garcia received income replacement benefits until the RECDAC assessment. This assessment was conducted over a two week period in May 1998. The RECDAC concluded that Mrs. Garcia's "physical, functional, emotional, and cognitive abilities indicated that she is capable of working as a full-time parking lot attendant."³

Mrs. Garcia claims that the RECDAC overestimated her functional abilities. Two central submissions were made about the RECDAC. First Mrs. Garcia claimed that the situational assessment conducted in the second week did not adequately address the concerns expressed by Dr. J. Douglas Salmon, a psychologist, respecting her ability to interact with others. Second, she submitted that the data collected is inconsistent with the conclusions drawn from it.

Liberty Mutual submitted that I could find that the RECDAC assessment was correct. However, Liberty Mutual also vigorously advanced the position that I could disagree with the RECDAC's conclusion that Mrs. Garcia was unable to return to her pre-accident employment. Liberty Mutual argued that because there was no objective evidence of any impairment suffered by Mrs. Garcia, as her difficulties were primarily emotional or psychological, any conclusions about her lack of function or disability must be based to a considerable degree on her advice to physicians. Liberty Mutual claims that Mrs. Garcia is not credible and her evidence of disability ought to be given little credit.

Mrs. Garcia's credibility is an issue in this arbitration. The concern about the reliability of her evidence arises from the fact that she did not disclose a significant medical history to any of the many medical practitioners with whom she came into contact after the November 1994 accident. There is no point in recounting the evidence in any great detail. Suffice it to say that in virtually every medical report filed in this matter Mrs. Garcia's pre-accident medical history is described as unremarkable or she is said to have suffered no prior workplace injury or other traumatic accidents. In the arbitration hearing she testified that she did not have any serious health concerns before the accident. She testified that she had perfect attendance and won bonuses for attendance in the two calendar years prior to the November 1994 accident. She specifically denied any workplace injuries or workers' compensation claims prior to the automobile accident. This manner of relating her pre-accident health status is also reflected in the summary report of the RECDAC:

Her past health is unremarkable. She does not have any history of asthma. There is no history of neck or back problems prior to the motor vehicle accident. She comments she had an excellent attendance record at her place of employment.⁴

It is true that in 1992 and 1993 Mrs. Garcia did have good attendance at work and did receive a bonus for that. Her attendance in 1994 leading up to the accident was good as well. What this evidence does not reveal is a dramatically different picture from 1984 to 1992.

In January 1984 Mrs. Garcia fell and injured her shoulder and left side of neck and head. She was off work for approximately eight months after this accident.

In May 1985 Mrs. Garcia complained of pain in her arm, chest and back and was assigned to light duties for a couple of weeks. Later that month Mrs. Garcia complained of pain in her left shoulder and left wrist. A workers' compensation claim was filed and she was subsequently found to be temporarily totally disabled. Mrs. Garcia returned to work on October 16, 1985. In March 1986 X-rays revealed early osteoarthritis changes at L2, L3 and L4 and in the left sacro-illiac joint.

In the summer of 1986 Mrs. Garcia was off work for two months because of complaints of neck and back pain and anxiety. In September 1986 Mrs. Garcia requested light work because of back, arm, wrist and foot problems. In October 1986 her family doctor, Dr. G.R. Varma advised that Mrs. Garcia had a deteriorating neck problem and that she should be on light duties for a period of time.

In June 1987 Mrs Garcia was off work for four months because of neck and back pain and fibrositis. In a report dated August 5, 1987, Dr. Varma diagnosed fibrositis, neck and back pain and carpal tunnel syndrome.

In 1988 Mrs. Garcia complained of severe upper and lower back pain (January 5) and generalized severe pain (January 6). On February 11 she reported that she was taking such powerful pain killers that she could no longer drive. On March 1 she complained of numbness in her right hand. On May 10 she complained of severe right shoulder and neck pain. On August 17 Mrs Garcia is reported complaining of severe frontal headache radiating to the occipital area and neck pain. Mrs. Garcia is also reported taking strong medication for chronic back pain and shoulder and arm pain. She missed two weeks of work in November 1988 for therapy for shoulder and hand pain. She was later off work for five months ending April 1989.

Dr. Varma has notes which record complaints of neck pain in July 1991 and May 1992. In November 1992 he noted neck and shoulder pain as well as cervical syndrome. In May 1993 Dr. Varma noted Mrs Garcia's complaints of dizziness, pain, palpitations and pain all over — neck shoulders and back. Dr. Varma again diagnosed fibrositis. On May 17, 1994 Dr. Varma noted long term complaints of back pain as well as a complaint of weakness in the legs.

Mrs. Garcia is at best a very poor historian. When confronted with her lengthy history of primarily workplace illness and injury, she testified that she did not remember these events until specifically asked. She testified as well that none of the many health practitioners she met subsequent to the November 1994 accident asked her about workplace accidents or injuries.

I did not hear evidence from most of the people involved in her care, and it is possible that some of those responsible did a less than thorough job of to taking a medical history from her. However, it defies common sense to conclude that the medical doctors, psychiatrists, psychologists, physiotherapists or anyone else involved in her care over the four plus years since November 1994 did not ask about her prior trauma, workplace accident or other injuries to her back, neck or arms, etc.

Mrs. Garcia has also exhibited a tendency to fashion the truth to suit her immediate interests. For example, she volunteered that she had in the past made false workers' compensation claims as a means of reducing her hours of work and taxes in a given year. She also explained that because of excess hours of work in the form of mandatory overtime, the only way to get time off work for rest was to book off sick. Mrs. Garcia said that she did this on several occasions. I do not have sufficient evidence respecting her employer's demands on its employees to come to any firm conclusions about the necessity of Mrs. Garcia's false claims of workplace injury and illness. In any event Mrs. Garcia's evidence established that she is able, when she considers it necessary, to fabricate a story helpful to her.

I have concluded that Mrs. Garcia's evidence must be treated with considerable caution. Whatever view is taken of the circumstances surrounding her significant pre-accident history of workers' compensation claims and other absences from work, purportedly for health reasons, Mrs. Garcia proved to be an unreliable witness. I therefore have not placed any significant weight on her testimony except as corroborated by some other source.

The Extent of Mrs. Garcia's Disability:

Mrs. Garcia was in three car accidents. Prior to the first of these accidents she was able to maintain an excellent attendance record at work for nearly three years. After the first and then the second accident she was unable to return to her work and she claims that she remains disabled to this day. Liberty Mutual has raised a substantial question about Mrs. Garcia's level of disability based entirely on her lack of credibility. Having found Mrs. Garcia to be an unreliable witness, a review of the medical evidence is required in order to assess Mrs. Garcia's level of disability.

The first accident occurred on November 23, 1994. Mrs. Garcia was a passenger in the back seat of a car travelling to work. She was asleep and awoke to a bump. She does not recall striking any part of the vehicle but reported seeing stars and had a bleeding nose. She may have vomited although the ambulance report indicates that she did not.

The second accident occurred on April 10, 1995. Mrs. Garcia was a passenger. The vehicle she was in was rear-ended and she was pushed forward and back but did not strike any part of the vehicle. This accident intensified the pains that she claimed to have been feeling. She felt that she was just about able to return to work following the first accident, but the pain, depression and anxiety she felt after the April 1995 accident prevented her from doing so.

In June 1995 Mrs. Garcia was assessed at the CranioCervical Rehabilitation Institute (the CCRI), at the request of Dr. S. Bergman, her family physician at this time. The CCRI concluded that Mrs. Garcia was unable to return to work from a "functional, medical, and psychological point of view."⁵

At about the same time Mrs. Garcia was assessed by Dr. Ricardo J. Harris, a psychologist, who found that she was becoming increasingly pain focussed and that psychological factors were aggravating her muscular pain. She was diagnosed as suffering a Pain Disorder associated with both Psychological Factors and a General Medical Condition.⁶

In August 1995, Mrs. Garcia was seen by Dr. Judith Pilowsky, a psychologist, at the request of Dr. Bergman. Dr. Pilowsky's opinion was that Mrs. Garcia met the diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood. When Mrs. Garcia advised that she intended to return to work in November 1995, Dr. Pilowsky wrote to Dr. Bergman, expressing concern about her decision.⁷

A SPECT brain scan conducted on October 10, 1995 identified small focal defects in the anterior inferior temporal lobe. These results were reported by Dr. Ichise to be consistent with a traumatic brain injury.⁸

A functional abilities evaluation requested by Liberty Mutual and conducted by Workable on October 30, 1995 concluded that Mrs. Garcia could return to her pre-accident work tasks with some limitations for two weeks.

In November 1995 Mrs. Garcia was assessed by Dr. Marek J. Gawel, a neurologist, at the request of Liberty Mutual. At the time of this assessment Mrs. Garcia had decided to attempt a return to work. Dr. Gawel concluded that Mrs Garcia had pain, headaches and memory disturbances which would make it difficult for her to work. Dr. Gawel felt that while Mrs Garcia's decision to return to work should be supported he also explained that she would have ample grounds to claim disability."⁹

Mrs. Garcia was also seen by Dr. John Patcai, at the request of Liberty Mutual, in November 1995. He could identify no specific physical impairments. In the absence of specific impairments being identified, Dr. Patcai concluded that no specific disability could be diagnosed on a medical basis.¹⁰

Dr. Peter Bernstein conducted a psychological assessment of Mrs. Garcia at the request of Liberty Mutual, in December 1995. Dr. Bernstein concluded that there was no indication of any psychological disturbance that could be related to the accident. He found evidence of mild depression but determined that this resulted from self-imposed restrictions on her level of activity, heightened awareness of her somatic complaints and a sense of dissatisfaction with her life before the accident. In his vive voce evidence Dr. Bernstein testified that in his view one of the most significant predictors of behaviour in cases like Mrs. Garcia's was satisfaction with their work. Dr. Bernstein said that he assumed Mrs. Garcia was not happy with her job. He came to that conclusion not based on anything that Mrs. Garcia made explicit but in part upon the fact that he had been in a chicken factory once. Dr. Bernstein refused to answer several questions respecting the methodology of his assessment, although admonished to do so. He refused in order to not reveal his methods to applicants and their counsel. He testified that disclosing his methodology would reduce his effectiveness as an assessor in future cases.

In July 1996 Mrs Garcia was sent to the Health Recovery Clinic for a multi-disciplinary disability assessment. In a report dated September 23, 1996, Dr. Allyson Harrisson, a neuropsychologist, concluded that Mrs Garcia demonstrated "cognitive and psychological difficulties severe enough to interfere with her ability to function safely and efficiently in her pre-accident job."¹¹ Dr. Harrisson could not endorse the conclusion that Mrs. Garcia had suffered a brain injury based on the SPECT scan results. An MRI or CT scan would be needed to confirm that there had been a brain injury. A functional assessment determined that Mrs. Garcia remained substantially unable to preform her pre-accident duties due to physical and functional impairments resulting from the November 1994 and April 1995 accidents.

Mrs. Garcia was referred to Dr. T. Hunt, a psychologist, who met with Mrs Garcia in July 1996. Dr. Hunt could not substantiate or refute the possibility of a mild brain injury. He considered that her fibro myalgia and sleep problems were affecting her cognitive functioning which was significantly impaired.

Dr. Bergman referred Mrs. Garcia to Dr. Veronica Kekosz who saw her three times a year beginning in January 26, 1996. Dr. Kekosz concluded that Mrs. Garcia was suffering a post traumatic head injury with accompanying headaches and dizziness; disco genic lower back pain and left leg sciatica; significant soft tissue injuries to the cervical spine and possibly left scroiliitis. It was Dr. Kekosz opinion that Mrs. Garcia was totally disabled from returning to any form of work as a consequence of the headaches, accompanied often by nausea and vomiting, neck pain, residual weakness in her left arm, sciatica with weakness and giving way of her left leg, post traumatic depression and anxiety disorder.¹²

Mrs. Garcia was seen by Dr. M. Mamelak, a psychiatrist, at the request of Dr. Bergman. Based upon the SPECT scan results he believed that she had suffered a brain injury and recommended a neuropsychological assessment and a brain MRI.¹³ Dr. Mamelak gave evidence at the hearing. His views about the best course of therapy for Mrs. Garcia are in marked contrast with virtually everyone else involved in her care. In brief he has advised her to do as much or as little as she felt was necessary.

The third accident occurred on December 14, 1996. Again the vehicle she was in was rear ended by another car. She was thrown forward but did not strike any part of the vehicle. This accident was not reported to Liberty Mutual. Mrs. Garcia testified that the accident exacerbated her pains and anxiety.

In a referral letter from Liberty Mutual to Riverfront Medical Evaluations, it is reported that a Dr. Sinlayson, in March 1997, recommended a neuropsychiatric consultation for her depression and pain as well as an opinion about the possibility of a brain injury.¹⁴

In a report dated March 7, 1997 Dr. Adrian Hanick, concluded that Mrs. Garcia was substantially disabled from working because of her significant low back mechanical dysfunction; likely posterior facet joint syndrome and related myofascial pain syndrome; post traumatic headaches; depression and emotional difficulties.¹⁵

Mrs. Garcia was assessed at Riverfront Medical Evaluations in July 1997. Mrs. Garcia was then diagnosed with post-traumatic stress disorder DSM - IV Code 309.81 and a pain disorder associated with both psychological factors and a general medical condition DSM - IV Code 307.89. She was also found to be incapable of returning to her pre-accident occupation as a hand packager/fry cool processor primarily as a result of the pain that she experiences.¹⁶

The RECDAC was conducted over two weeks in May 1998. The first week involved medical and physical assessments by a physician, a psychologist and an occupational therapist.

Dr. David Sedran conducted the medical assessment. He concluded that Mrs. Garcia would likely be unable to perform anything but a sedentary occupation. He came to this conclusion on the basis of objective evidence of a lumbar disc herniation and evidence of nerve root irritation. These objective findings would affect Mrs. Garcia's ability to lift, as any amount of lifting "can exacerbate lumbar disc herniation and hence exacerbate nerve root impingement."¹⁷ He also found restricted range of motion in her back, which he found to be consistent with the lumbar disc herniation. There is no mention of the SPECT scan results and the possibility of a mild brain injury.

Dr. Salmon conducted a psychiatric assessment as part of the RECDAC. Dr. Salmon found Mrs. Garcia to present with "significant depressive features, either at the level of a major depressive episode, contingent upon the chronicity of them, or perhaps a dysthymic disorder."¹⁸

Dr. Salmon noted that Mrs. Garcia reported a loss of social interest and social withdrawal. Dr. Salmon noted that Mrs. Garcia's ability to interact with others should be monitored over the course of the situational testing to see whether she should be precluded from occupations requiring "significant sustained contact with the public." Dr. Salmon did not consider the SPECT scan results either, or the recommendations of several physicians for further neuropsychological assessments.

Video surveillance was entered in evidence and reviewed.

I find, based on this evidence, that Mrs. Garcia was substantially disabled as of the time of the RECDAC assessment and could not at that stage have returned to her pre-accident employment. I find that a significant part of Mrs. Garcia's problems are fairly characterised as psychological or emotional, however the validity of the diagnoses does not rest exclusively on Mrs. Garcia's reliability as a historian. To begin with, it does not inevitably follow from the fact that Mrs. Garcia did not disclose her history of workplace illness and injury that she did not suffer any disabling impairments in the November 1994 and April 1995 accidents. Ironically in telling her assessors and others that she had not suffered any workplace injuries she was being more truthful perhaps than the records indicate given her evidence that she feigned illness and injury to get time off work. An assessment of the remaining record is still required.

Mrs. Garcia was examined by many medical practitioners. Those who considered her physical ability to function generally felt that she could return to something like her pre-accident level of activity. However, those who examined her psychological, emotional and cognitive abilities generally identified significant impairments in her functional abilities from the perspective of their disciplines.

I accept the opinions of Dr. Harrison, Dr. Gawel, and Dr. Hunt. The only evidence challenging the view of these practitioners is that of Dr. Bernstein. I do not find Dr. Bernstein's opinions to be persuasive. His failure to answer critical questions respecting his method of assessment and his admission that he made an assumption about what he described as a critical factor in assessment undermines the weight of his opinions.

I also note Dr. Sedran's conclusions that having regard to the objective evidence of Mrs. Garcia's back problems he felt that a sedentary occupation was the only realistic option for her. In addition there are the results of the SPECT scan which, while not necessarily indicating that Mrs. Garcia has sustained a brain injury, does provide an explanation for the cognitive deficits which have been identified by Dr. Harrisson, Dr. Hunt and Dr. Gawel.

The Validity of the RECDAC Results:

Ms. Sandra Wong testified that in the case conference after the first week of medical assessments, the team identified parking lot attendant as the most suitable occupation for a situational or functional assessment. During the situational assessment Mrs Garcia participated in a number of functional activities related to the position of parking lot attendant.

Ms. Wong testified that the assessment team felt that the outcome of the situational work assessment was a valid result based on consistent performance and sincere effort by Mrs. Garcia. Ms. Wong also testified that if pain behaviours were affecting the validity of the data collected in the situational assessment that would be drawn out in the report. In this case, although some pain focussed behaviours were noted, they were insignificant in terms of affecting the validity of the data collected according to Ms. Wong.

One of the challenges to the conclusions of the RECDAC made by Mrs. Garcia related to the number of breaks that she needed to get through the day of testing. The number of breaks that were taken are noted in Ms. Wong's report. The breaks recorded in the notes are numerous and lengthy. Day 1: seven breaks ranging in length from 1 minute to 12 minutes; Day 2: eight breaks ranging from 1 minute to 28 minutes; Day 3: fourteen breaks from 1 minute to 15 minutes; Day 4, six breaks from 15 to 25 minutes and Day 5: 12 breaks that lasted no longer than nine minutes. It was also noted that Mrs. Garcia spent part of each lunch hour laying down.

Ms. Wong testified that the breaks often involved changes in position, for example from sitting to standing or vice versa and not the cessation of whatever activity was being undertaken at the time. Despite this evidence a review of the contemporaneous notes made by Ms. Wong and the other assessors, indicate that on several occasions that Mrs. Garcia needed to lay down during the course of the situational assessment. On Day 2 Mrs. Garcia laid down at 10:30 a.m., 1.5 hours after the day began. On Day 3, Mrs Garcia was able to cope until 11:30 until she needed to lay down and on Day 4 Mrs. Garcia laid down at approximately 2:30 p.m.. On Days 1 and 5 Mrs. Garcia did not need to lay down during the course of testing although she did spend a significant part of each lunch period laying down.

In addition to the need for breaks, Mrs. Garcia used ice packs daily after the first day of testing. There is also evidence of analgesic use during the course of the situational testing. Ms. Wong did not consider that these factors represented barriers to performance of the position.

Dr. Kekosz questioned the RECDAC results, noting the significant number of breaks that Mrs. Garcia required. Given the amount of rest she required, the Doctor queried how Mrs. Garcia could be expected to function in a real world situation when she apparently could not in the supportive environment of the assessment.

Despite Mrs. Garcia's contention that Dr. Salmon's concerns about her ability to interact with people was not adequately addressed, I find that sufficient attention was paid to the issue. Mrs Garcia was noted as being apprehensive and anxious at the beginning of the week of functional testing but by the end was relating well to the assessors, interpreters, sharing her experiences and on occasion laughing.

However I do find that the RECDAC did overestimate Mrs. Garcia ability to function in the workplace. I make this finding based on the difficulty in squaring Ms. Wong's testimony that Mrs. Garcia was giving a sincere effort in the situational work assessment with the evidence of Mrs. Garcia's need for numerous rest breaks. If indeed she was required to take the breaks noted and the data collected is therefore reliable, I agree with Mrs. Garcia that the data belies the conclusion that she is able to fulfill the functions of a full time parking lot attendant.

I find that Mrs. Garcia required regular breaks from the activities required of her. Although some of the breaks, perhaps most of them, were only postural shifts, the notes of the functional assessment indicate that on three of the five days of testing Mrs. Garcia needed to lay down for lengthy periods of time.

Equally clear is the fact that Mrs. Garcia is not totally disabled. The difficulty comes in determining a residual earning capacity. Mrs. Garcia endorsed the data collected in the RECDAC. I find that it is the best evidence available to me. I find that the need to lay down in the course of testing roughly indicates the end point of Mrs. Garcia's ability to function. The need to lay down appears to have arisen after some period at "work" and that on each successive day of testing that period of time before the need to lay down arose, increased. I find based upon that rough measure that Mrs. Garcia is able to work at the position of a parking lot attendant half time. Accordingly the annual income for this position should be one half of the figure produced in the RECDAC report based on the OIC's 1998 Residual Earning Capacity wage tables.

The Section 21(9) Rollover:

Mrs. Garcia submitted that because Mrs. Garcia never applied for benefits under the SABS following the April 1995 accident, benefits could not be said to be payable and therefore Liberty Mutual could not avail itself of the rollover.

Liberty Mutual submitted that the provision was intended to allow an appropriate window of time for an insurer to assess a claim before being locked into a LECB. Liberty Mutual submitted that it would be unfair to require a LECB assessment in the circumstance where an accident occurred at the 104 week mark that rendered the insured person totally but temporarily disabled. Liberty Mutual also submitted that on the facts of this case, acceptance of Mrs. Garcia's evidence would disentitle her to further benefits after April 1995 as she was unequivocal in her evidence that she would have been able to return to work but for injuries sustained in that accident.

No submissions were made concerning where the onus lay in establishing the applicability or not of section 21(9). The provision provides as follows:

(9) If an insured person suffers an impairment as a result of an accident that occurs after the accident in respect of which an offer would, in the absence of this subsection, be given under subsection (1), and the latter accident results in a disability in respect of which weekly benefits are payable under Part II, section 15, Part IV or Part V, the operation of subsection (1) is delayed until 104 weeks after the latter accident.

The section provides for a rolling two year period following each accident for which there is a compensable impairment to function during which the insurer is able to assess the claim before being locked into paying a LECB.

Ms. Tina Maasland, a claims representative employed by Liberty Mutual, was unable to provide any detail about how or why the decision was taken to rely upon the section 21(9) rollover in this case and could not say what information was relied upon in determining that the provision applied. No application for benefits was made following the April 1995 accident, although there is a record of counsel for Mrs. Garcia contacting Liberty Mutual to advise it of the accident. A file was created and benefits were paid on it after January 7, 1997, that is only after the decision to invoke the rollover was taken. Ms. Maasland could not remember why she ordered fresh surveillance or new IMEs at about the same time as the decision was taken to rely upon the rollover.

I agree with Liberty Mutual. The section does not require that there has been an application for benefits made but only that there has been an impairment as a result of an accident for which certain benefits are payable. I note that the provision does not require that benefits are being paid and in that regard it mirrors the entitlement provisions of section 7 and 15, for example, which do not link entitlement to the formal requirement of making an application.

I find that Mrs. Garcia suffered an impairment as a result of the April 10, 1995 accident for which a weekly income benefit was payable. There is no evidence from Liberty Mutual respecting the basis for their decision to rely upon the rollover, giving credence to Mrs. Garcia's suspicions. However a suspicion does not amount to evidence that Liberty Mutual improperly relied upon the provision. The facts before me are unequivocal and I make my determination based upon those facts and not what was known by Liberty Mutual at the time of its decision. Accordingly I find that Liberty Mutual was entitled to rely upon section 21(9) and was not required to make an LECB offer two years after the November 1994 accident.

The Special Award:

Mrs. Garcia seeks a special award based upon the Insurer's delay in making the LECB offer from November 1996 to October 1997. In Mrs. Garcia's submission Liberty Mutual was seeking to extend for as long as it could the time before it was required to make a LECB offer. The LECB, submitted Mrs. Garcia, would have insulated her from further scrutiny by Liberty Mutual for three years. In short, submitted Mrs. Garcia, Liberty Mutual sought to delay being locked in to having to a LECB benefit in hopes that something would turn up that would reduce or eliminate its liability to her.

Liberty Mutual submitted that there was no unreasonable delay in its handling of this matter. It also submitted that no special award could be made in any event as there is no monetary value to a LECB offer.

As I indicated at the hearing, the period from the decision to invoke the rollover to April 1997 could not be relied upon in respect of a special award unless there was evidence of bad faith or deliberate misreading of the statute. Although it is troubling that there is almost no evidence of how Liberty Mutual determined the rollover applied to these circumstances, there is equally little evidence of bad faith. Having found that Liberty Mutual could rely on the rollover, I find that the delay from November 1996 to April 1997 is not a delay that could give rise to a special award.

As indicated earlier Mrs. Garcia refused to attend IMEs scheduled in January 1997 and the parties became embroiled in a dispute about Liberty Mutual's termination of benefits. Those issues were resolved and weekly benefits reinstated in July 1997. The Riverfront assessment reports were received by Liberty Mutual on September 3, 1997. Liberty Mutual asked Dr. Chapman for a clarification in a letter dated September 24, 1997. That report was received on October 16, 1997. The following day Liberty Mutual requested a vocational assessment. It also sought further surveillance at some point during these weeks, although Ms. Maasland could not recall precisely when. The vocational assessment was received on November 27 and a LECB offer was made the same day.

I do not find that the conduct of Liberty Mutual in this case merits a special award. Ms. Maasland was not a particularly reliable historian and indicated quite clearly that she had doubts about Mrs. Garcia's level of disability because it was seen to be psychological rather than medical, to use her characterisations. Despite these views the objective record does not reveal any considerable or unreasonable delay that is attributable to Liberty Mutual. The longest delay, from April 1997 to early September 1997 was a consequence of Mrs. Garcia's refusal to attend the IMEs scheduled in January 1997. I do not think that the two to three week delay in seeking a clarification from Dr. Chapman was unreasonable. The delay from October 16 to November 27, 1997 while Liberty Mutual sought an updated vocational assessment was not unreasonable either. Although some of the surrounding circumstances may give rise to a reasonable suspicion, on closer examination Liberty Mutual has not unreasonably withheld or delayed a benefit. Accordingly I find that Liberty Mutual is not required to pay a lump sum as a special award.

In view of my conclusions on the facts I leave for another day the submission of Liberty Mutual that a special award could not be made in this circumstance because there is no monetary value in a LECB offer.

Medical Rehabilitation Benefit:

Dr. Bergman testified that Mrs. Garcia needed acupuncture. That statement was not challenged. A Med Rehab DAC conducted by Columbia recommended active treatments only.¹⁹ Dr. Bernstein recommended discontinuing passive treatments.

On the basis of this limited evidence I find that the expenses for acupuncture are not reasonable or necessary for the treatment of an impairment caused by the November 1994 and April 1995 accidents.

EXPENSES:

The parties may speak to the issue of expenses if unable to resolve the issue themselves.

January 27 , 2000

David Muir Arbitrator

Date