Neutral Citation: 2000 ONFSCDRS 26

FSCO A98-000699

BETWEEN:

ANUPAM SHARMA

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Joyce Miller

Heard:

November 22, 23, and 24, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Harvey Consky for Mrs. Sharma

Aldo Picchetti for Wawanesa Mutual Insurance Company

The Applicant, Anupam Sharma, was injured in a motor vehicle accident on April 29, 1997. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Wawanesa terminated weekly income replacement benefits on November 15, 1997. The parties were unable to resolve their disputes through mediation, and Mrs. Sharma 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. Sharma entitled to receive a weekly income replacement benefit pursuant to sections 4 of the Schedule from November 15, 1997 and ongoing?
Is Wawanesa liable to pay Mrs. Sharma's expenses in respect of the arbitration under section282(11) of the Insurance Act?
Is Mrs. Sharma liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act.

Mrs. Sharma is not entitled to receive further weekly income replacement benefits.
If needed, I may now be spoken to on the issue of expenses.

The Accident

Mrs. Sharma, who is 30 years old, emigrated to Canada from India in 1994. At the time of the accident she was 27 years old. She had been married for three years. She had one son, 16 months old, and was three months pregnant. The accident happened when she was on her way home from work.

Mrs. Sharma testified that she was walking on the sidewalk when a car, which was in a stationary position in a parking lot, began to move. Mrs. Sharma stated that when she saw the car moving she placed her hands on the hood of the car and shouted to the driver to stop. The car, which was travelling at approximately five kilometres an hour, nevertheless, hit her left side at hip level.

Mrs. Sharma testified that she fell on her right side and hit her right shoulder and head. She said that she was dragged to the yellow line in the road, but the car did not run over her. Her only immediate visible injury was a cut to her left big toe.

A man passing by, who spoke her language, Hindi, helped her get up and she asked him to call her brother-in-law who was near by. The police and ambulance arrived and she was offered medical treatment, which she declined.

Mrs. Sharma testified that she refused medical treatment because she had to pick up her son at the babysitter and was afraid that he would be worried if she did not get there on time. When asked under cross examination why she did not call the babysitter or send her brother-in-law, Mrs. Sharma responded that she had forgotten the phone number and that her brother-in-law did not know where the babysitter lived. In the end the police drove both Mrs. Sharma and her brother-in-law to the babysitter.

Mrs. Sharma testified that after she picked up her son she went home. She chose not to seek medical attention that evening when her husband came home, but instead went to see her family doctor, Dr. Murti, the next day.

Mrs. Sharma testified that the night of the accident she could not sleep because she had leg pain and a headache. The next day she had neck and back pain. Two or three days after that she developed right shoulder pain. When she saw her doctor, he ordered an ultra sound on the fetus. The results of the ultra sound showed that no harm was done to the baby. Mrs. Sharma testified that her pregnancy was uneventful and that she had a "normal and natural" delivery on October 18, 1997. However, both Mrs. and Mr. Sharma testified that since her daughter's birth Mrs. Sharma has never been able to hold the baby because of the pain in her right shoulder.

Mrs. Sharma stated that she only breast fed her daughter for the first month. She stated that when she did feed her daughter she was propped up by pillows and she held the baby's head with her left hand while her right arm dangled over the baby's body. Mr. Sharma added that the baby hardly had to be lifted because she slept 18 to 19 hours a night right from birth.

Mrs. Sharma testified that since the accident she has never cared for her children, who are looked after full time, by her aunt. Her husband, who works five and a half days a week, does all the cooking, cleaning, laundry, and grocery shopping as well as looking after the children in the early morning before he goes to work, dressing them and making breakfast, and in the evening when he returns home, serving dinner, bathing them and putting them to bed.

Mrs. Sharma further testified that she did not return to work after the accident because her doctor told her to rest for a few weeks. As well, she stated that about 10 days after the accident she was laid off work because her department had closed down. She stated that she has not looked for any other work, because there is no financial need for her to work and that her husband does not want her to work with her pain.

Mrs. Sharma testified that she now spends most of her days laying down, reading a book or watching television. Sometimes she dusts the television and the VCR and when she feels better she chops some vegetables for dinner. She also listens to a relaxation tape and does some stretching exercises. Occasionally she takes a short walk with her husband in the evening during the summer.

Essential Tasks

Mrs. Sharma worked at Wisemen Export for six months before the accident. Her job was to cut up old clothes into squares to be used as industrial cleaning rags. The essential task that Mrs. Sharma had to perform was to sit in an armless straight back chair in front of a continually rotating blade and guide the fabric through the blade.

Bales of material weighing approximately 800 to 1000 pounds were brought to Mrs. Sharma and placed to her left. The fabrics, which were generally light weight, at times might contain jean material which was a bit heavier. Mrs. Sharma testified that sometimes she had to climb up on top of the bale to pull out the material if it was packed too tight and the material was stuck, otherwise she would reach to the middle of the bale.

If there were any buttons or zippers on the material Mrs. Sharma had to cut them off and discard them in a bin to the rear right of her chair. After she cut the material, she would place the cut material in a bin on her right side. Mrs. Sharma testified that the bin was 6 to 8 feet long and 3 feet high. After the bins were full they were taken away by another employee. If Mrs. Sharma chose she could push the bins away on her own, but this was not a requirement of her job. Mrs. Sharma was paid per pound of material cut.

The Occupational Therapy Job Analysis Report of November 4, 1997 classified Mrs. Sharma job according to industrial standards as "sedentary work" which is defined as "equivalent to lifting 10 pounds maximum with occasional lifting and/or carrying small objects. While mostly done sitting, a certain amount of walking and standing is often necessary in carrying out job duties."

The report goes on to state continual/repetitive upper extremity activities to reach for materials and subsequently discard the materials into bins following the job task. The position of the shoulders likely is to include an abducted and externally rotated motion. The job "did not require the employee to lift and carry more than 5 kgs at a time."

Medical Evidence

Mrs. Sharma testified that her cut toe healed within 10 days of the accident, but that she continued to have neck, low back, right shoulder, and left hip and leg pain. Her family doctor sent her to see a physiatrist, Dr. Pierre Kirwin. In his report of July 22, 1997 Dr. Kirwin reported a different version of the accident from the one given by Mrs. Sharma at the hearing. He noted that Mrs. Sharma told him that "... the car threw her some seven feet onto her right side, landing on her right shoulder" and that she did not hit her head. In his conclusion Dr. Kirwin stated:

In assessment, Mrs. Sharma appears to be suffering from a whiplash associated disorder of the cervical spine, lumbar myofascial strain, left greater trochanteric bursitis, left shin splint, right frozen shoulder and cervicogenic headache due to a motor vehicle accident earlier this spring. There is markedly diminished range of motion involving the spine, particular the lumbar and cervical spine, in excess of what I would expect with the amount of trauma she sustained.

Dr. Kirwin recommended that Mrs. Sharma "attend a gentle active exercise program to improve the range of motion of her right shoulder cervical and lumbar spine." As well, he recommended that she use plain Tylenol "to control her discomfort" and to do a program of range of motion exercises at home for her right shoulder.

In August, towards the end of her pregnancy, Mrs. Sharma began a conditioning program at ACT Health Group Corporation ("ACT"). The discharge report by ACT of September 23, 1997 stated that Mrs. Sharma demonstrated good attendance, but that she reported that her back and neck pain remained constant and did not change in its intensity. The report also stated that "[t]he cervical and low back range of motion remain severely restricted and guarded. The bilateral shoulder movement improved significantly and is now functional. Superficial tenderness continues over the neck, low back, and left calf." Mrs. Sharma was discharged from the program because she was due to have her baby in a few weeks.

It is not clear whether Mrs. Sharma attended any further physiotherapy after she gave birth. The evidence shows that a treatment plan was submitted by Mrs. Sharma's family doctor recommending that she undergo physical therapy for cervical strain, right shoulder strain and lumbar myofacial strain from December 5, 1997 to March 3, 1998. Mrs. Sharma testified that she did undergo physiotherapy during this period. However, I was not presented with any clinical reports substantiating this. The clinical notes of the rehab psychotherapist, Jacqui Gajewski, on January 6, 1998 indicate that Mrs. Sharma had stopped going to physiotherapy.

On November 15, 1997 Mrs. Sharma's weekly income replacement benefits were terminated on the basis of an Insurer's Medical Examination on September 22, 1997 by Dr. Robert Welsh, an orthopaedic surgeon who was Chief of Staff/Chief of Surgery at the Orthopaedic and Arthritic Hospital in Toronto. In his report of the same date he stated:

Neck movements which had been natural and comfortable in interview, were inhibited actively in formal review. There was resistance offered even to the slightest passive movement. Shoulder movement, as well, was actively inhibited. On overhead reach, there was complaint of pain in the back. Passive range of motion of the shoulders was satisfactory until 3/4 range was reached and then there was active resistance which far exceeded her strength effort in formal strength testing when she gave way. On examination of the extremities, she showed poor grip strength effort and was self-limited with finger spread testing.

On examining the spine, the alignment was seen to be satisfactory, but movements were actively resisted. Forward flexion was demonstrated barely tilting forward. She did so with an increase in her lumbar lordosis, and then when she reached her limit of tolerance would spring back into extension. She was unable to extend when asked during the evaluation. Lower extremity examination saw her inhibited in toe-heel and heel-toe walking. She would only squat half way. Strength effort was suboptimal. Straight leg raise was said to produce pain in the back, but active resistance was offered at a block of 60 [degrees]. Examination of the extremities was found to be constrained. Examination of the knees found no effusion, normal stability and no sign of internal derangement. The reflex function was seen to be sound.

Dr. Welsh stated that although the fact that Mrs. Sharma was eight months pregnant affected her behaviour and response to some extent, nevertheless, he concluded that "[fjrom the point of view of her accident involvement, there are no reasons to restrict her from performing her normal responsibilities in day to day life or in a work context."

On December 1, 1997 Mrs. Sharma underwent an x-ray of her spine, right shoulder and left fibia and fibula and left foot. The report concluded that her bone structure and alignment was normal and that there were no significant bone or joint abnormalities. With respect to her right shoulder, along with indicating that it was normal, the report specifically noted that there was no soft tissue calcification. Regarding her neck, the report stated that on examination there was a reduced movement with flexion which was suggestive of muscle spasm. As well, the report stated that "[t]he prevertebral soft tissues are normal and there is not unlocking of the facets."

Mrs. Sharma also underwent a "Total Body Bone Scan and Flow" on April 27, 1998. The report of April 29, 1998 stated that aside from some "mild bursistis" in the right AC joint and some "mild arthritis" in the left patellofemoral (knee) joint the rest of the total body bone scan was normal.

In January 1998 Mrs. Sharma's physician, Dr. Murti, referred her for a psychological assessment which was performed by ACT. In her report of January 16, 1998, the assessing psychologist, Dr. Joanna Mitsopulos, stated that Mrs. Sharma was suffering from a moderate level of depression and a minor level of anxiety as a result of her accident. She was pain focussed which was also contributing to her depression. Dr. Mitsopulos recommended that she undergo 10 to 12 treatment sessions which would "focus on reducing the symptoms of depression, and on assisting Ms. Sharma in adopting more useful coping skills to deal with her pain."

In a progress report dated March 30, 1998, the treating Rehab Psychotherapist, Ms. Gajewski, stated that "While we were beginning to make some amount of progress, Ms. Sharma's recent miscarriage (and accompanying despair) only serves to complicate and compound her already existing depression. Her defences are quite rigid and she has great difficulty verbalizing her feelings. Nevertheless, she does report some improvement with respect to her insomnia and "passenger anxiety" in the car." Ms. Gajewski recommended Mrs. Sharma receive three more sessions, which was approved by Wawanesa.

In May 1998 Ms. Gajewski recommended that Mrs. Sharma return to work.²

One month later Dr. Kirwin, in his report of June 16, 1998, also recommended that Mrs. Sharma return to work. In his report Dr. Kirwin stated:

In assessment, Mrs. Sharma continues to suffer from the chronic pain syndrome. A component of her pain involving the right shoulder appears to be on the basis of her osteoarthritis of the right AC joint. I again discussed option of a cortisone injection for the right shoulder and left hip which she will consider further. I will await her call. I encouraged her to continue on with a home exercise program, Relafen, discontinue her Elavil and to look into a trial of a light duty type of job for the summer.

On July 19, 1999 Dr. Kirwin wrote a report to Mrs. Sharma's lawyer where he stated:

Due to her injuries Mrs. Sharma is unable to do the walking, twisting/rotating of the cervical and lumbar spine, pulling, sitting, neck motion, lifting, overhead reaching, carrying, and bending which is required at her job.

Dr. Kirwin testified at the hearing. He stated that it was his opinion that Mrs. Sharma's job was not a sedentary light job but was moderately heavy because of the repetitive nature of the job. However, under cross-examination he admitted that he had not performed a Functional Capacity Evaluation, nor had he visited Mrs. Sharma's work site. His knowledge of Mrs. Sharma's job came from what she told him.

Dr. Kirwin testified that in his opinion the repetitive nature of Mrs. Sharma's job would aggravate her physical problems. Based on his last examination of her on April 29, 1999 he did not find any improvement in her condition and he felt she could not go back to work.

Analysis and Findings:

In order to succeed in her claim Mrs. Sharma must prove on the balance of probabilities that pursuant to section 4 of the Schedule, as a result of the accident of April 29, 1997, she is substantially disabled from performing the essential tasks of her employment. The test is not some inability to perform essential tasks, but a substantial or sizeable inability to perform these tasks.³ The experience of pain itself is not compensated under the Schedule, except in a case where pain impairs function to such a degree that the person is substantially unable to perform his essential tasks.⁴

For the following reasons I find that Mrs. Sharma has not discharged her burden of proof that as a result of the accident she is substantially disabled from performing the essential tasks of her employment.

The accident was a minor one. There is no evidence that Mrs. Sharma suffered any bruising which would indicate a sharp, hard fall or the dragging effect she stated occurred. Mrs. Sharma refused medical assistance at the scene of the accident. Mrs. Sharma underwent physiotherapy late in her pregnancy and according to her testimony she had a normal and natural child birth. When she finished her physiotherapy in January 1998 she sought no further treatment such as massage, chiropractic treatment or pain management. She refused to undergo the cortisone injection or the nerve block recommended by Dr. Kirwin.

The x-ray on her bones in December 1, 1997 did not reveal any bone abnormality and specifically noted that her right shoulder had "no soft tissue calcification." A bone scan on April 27, 1998 noted that her "total bone scan is normal" except for some "mild increased activity in the right AC joint in keeping with mild bursitis," and "mild arthritis in the left patellofemoral [knee] joint." As well, there was no medical finding that Mrs. Sharma had any neurological abnormality.

Dr. Welsh, in his report of September 22, 1997, stated that "Ms. Sharma presents at this time with clear indication of self-inhibition and restraint without there being an identified indicator of injury process.".... "[Ms. Sharma] is not seen to suffer at this time ongoing disability as it relates to the accident of April 29, 1997. Further treatment is not required for the injuries arising out of the accident for none were identified."

Succinctly, there are no significant objective findings to support Mrs. Sharma claim of disabling pain. I give little weight to Mrs. Sharma's subjective complaints which I find not to be credible.

First, I do not accept Mrs. Sharma's testimony that has never held or lifted her young daughter since birth, because of her injuries from the car accident. I do not find it plausible that the baby, which Mrs. Sharma described to be a normal and healthy baby, has from birth continually slept 18 to 19 out of 24 hours a day. Moreover, the clinical notes of both Dr. Kirwin and the rehab psychotherapist, Ms. Gajewski, clearly contradict Mrs. Sharma's evidence that she stopped breast feeding after the first month. In fact the notes show that Mrs. Sharma was still breast feeding in February 1998 when the baby was five months old. As well, Dr. Kirwin testified that there was no medical reason why Mrs. Sharma could not hold her daughter to breast or bottle feed her.

For these reasons I conclude that in order to enhance her claim for benefits, Mrs. Sharma exaggerated her disability and was not truthful about her ability to lift, hold and feed her daughter.

Second, I do not believe Mrs. Sharma's testimony that her aunt looks after her children full time and that her husband does all of the housework because she is disabled from the accident. If in fact Mrs. Sharma is as seriously disabled as she claims to be, then it would be reasonable to conclude that she would have made some sort of claim for housekeeping and child care rather then to create a stressful burden on her aunt and her husband who works full time. I received no evidence that such a claim was made or that she was refused these benefits by Wawanesa.

Another reason I do not find that Mrs. Sharma's pain to be as debilitating as she claims is that her actions regarding treatment are not in keeping with a person whose pain allegedly, not only prevents her from working, but also from performing the essential tasks of daily living, including caring for her children. Mrs. Sharma testified that at the present time she deals with her pain by taking over-the-counter Tylenol, listening to a relaxation tape and doing stretching exercises. She testified that these modalities have not helped to reduce her pain.

If Mrs. Sharma was as disabled as she claims it would be reasonable for her to have engaged in further treatment and pain management programs. However, since she stopped physiotherapy treatments in January 1998 (or as Mrs. Sharma claims in March 1998), neither Mrs. Sharma's family doctor or Dr. Kirwin have recommended any further treatment such as, massage, chiropractic treatment, additional physiotherapy or pain management. No treatment plan has been presented to or been refused by Wawanesa.

Dr. Kirwin had recommended on several occasions that she have a cortisone injection for her alleged right shoulder pain, but she has refused. Mrs. Sharma testified that she refused this treatment because she was afraid of the side effects, one of which could result in increased pain. Dr. Kirwin, on the other hand, testified that he had been administering these injections for 14 years and not one of his patients has suffered from any side effect. As well, the evidence shows that Dr. Kirwin offered to perform a nerve block for her neck pain and headaches, but she also refused this treatment. I, therefore, conclude from this that Mrs. Sharma's pain is not as debilitating as she claims and that she does not need any further treatment.

Fourth, Wawanesa presented surveillance evidence⁵ of Mrs. Sharma on a 12 minute walk to a bus stop near her home which I find impugns her credibility. While the surveillance was a short, snap shot of Mrs. Sharma walking, I, nevertheless, find it relevant and significant.

In her testimony Mrs. Sharma portrayed herself as an invalid. The surveillance, however, reveals a rather vigorous, strong woman, walking briskly, swinging her shoulders freely, reaching with ease over her head with both arms to fix a hair clip, and swinging her right arm freely from the shoulder while her young son clasps her hand. At one point in the video Mrs. Sharma is walking so fast that her young son had to run to keep up with her.

The surveillance video was not only in sharp contrast to Mrs. Sharma evidence regarding her disability, but also in the way Mrs. Sharma presented herself at the hearing. For example, on several occasions when her husband was testifying, Mrs. Sharma stood up and walked around the hearing room very slowly limping with her left leg as if she were in pain. Having not seen this slow limping walk before the surveillance evidence was presented, I conclude that it is more likely than not that she was feigning her limp to advance her claim.

Finally, I find that it is more likely then not that Mrs. Sharma has not returned to work because of lack of motivation, as opposed to any injuries she received in her accident.

At the time of the accident Mrs. Sharma was pregnant with her second child. Ten days after the accident she was laid off from her job. Mrs. Sharma testified that she did not have to work for financial reasons, because her husband could support the family. I note that in May and June 1998 both the psychologist and Dr. Kirwin recommended that she return to work. However, Mrs. Sharma chose not to do so. Mrs. Sharma stated that the reason she has not tried to go back to work is because of her debilitating pain. However, I find it is more likely that the real reason is that Mrs. Sharma has no incentive to return to work and has shifted this lack of motivation to her alleged injuries from the accident.

For all of the above reasons I find that Mrs. Sharma complaints about disabling pain has no objective basis and are exaggerated and self-serving. Accordingly, I find that Mrs. Sharma has not discharged her burden of proof that she is substantially disabled from performing the essential tasks of her employment and is therefore not entitled to ongoing income replacement benefit pursuant to section 4 of the Schedule from November 16, 1997 and ongoing.

EXPENSES:

If needed, the parties may now speak to me on the issue of expenses.

February 2, 2000

Joyce Miller Arbitrator

Date