Neutral Citation: 2001 ONFSCDRS 151
FSCO A00-000571
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
S.C.
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Tanja Wacyk
Heard:
July 17 and 18, 2001, at the offices of the Financial Services Commission of Ontario in Toronto
Appearances:
Ian Little for S. C.
Bob Franklin for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, S. C., was injured in a motor vehicle accident on November 22, 1998. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.1 State Farm terminated weekly income replacement benefits on March 20, 1999. The parties were unable to resolve their disputes through mediation, and S. C. 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 S.C. entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule, for the period from March 21, 1999, until he returned to full-time employment on June 26, 2000?
Is either party entitled to its expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
S.C. also claims interest on any amounts owing.
Result:
S. C. is entitled to receive a weekly income replacement benefit, with interest, for the period from March 21, 1999 to June 26, 2000. The quantum of the benefit is to reflect his gradual return to work.
I may be contacted if the parties are unable to agree on the issue of arbitration expenses.
EVIDENCE AND ANALYSIS:
S.C. was injured when he stopped at an intersection to allow two ambulances to pass, and his 1990 Plymouth Voyaguer Van was hit from behind by a Ford Explorer (SUV). His vehicle required $4,500 in repairs.
S.C.'s wife and two children were also in the vehicle at the time of the accident. S.C. and his family were subsequently examined at the Humber River Regional Hospital. At that time, S.C. complained of an injury to his left shoulder and arm, with pain and numbness to the fingers on his left hand. He was advised to see his own family physician.
The day following the accident, S. C. experienced back pain. He took analgesics for the pain 2and remained home from work. He returned to work the following day, but remained on analgesics.
At the time, S.C. was and continues to be employed as a Customer Service Representative for "The Shopping Channel." His primary responsibilities include responding to customer inquiries, taking orders and arranging for delivery of purchases.3
It is also worth noting the manner in which S.C.'s work and domestic responsibilities interface.
S.C. works the night shift so that he can be home with the children during the day and because that shift pays more. Prior to the accident, he often worked six days per week. S. C. returns home after his shift ends at 6:00 a.m. and sleeps for a couple of hours while his wife deals with the children. He then assumes responsibility for them until his wife returns home at five o'clock. He then sleeps a few more hours before his shift starts at 10:00 p.m. S.C. spends time with his wife only on weekends and this had been his routine since 1993.
Prior to the accident S.C. was looking for a day job. He denied being unhappy working nights, but felt that with a better paying job he could spend more time with his children.
Following the accident, S.C. saw Dr. Bohden Olearczyk, his family physician, on November 26, 1998, the earliest appointment available. S.C. testified that he complained to Dr. Olearczyk about lower back pain and was advised to continue taking analgesics. If the pain did not go away, he was to return in a couple of weeks.
However, in a report to State Farm dated February 5, 1999, Dr. Olearczyk stated that he diagnosed S.C. with soft tissue injuries involving mainly his upper back. According to Dr. Olearczyk, S.C.'s symptoms were mild, and no specific treatment was offered. Dr. Olearczyk also noted that there was no need to restrict S.C.'s activities at work.
S.C. remained at work but returned to see Dr. Olearczyk on December 9, 1999. He testified that on that occasion he again complained of pain in his lower back and also his neck. He could not explain why Dr. Olearczyk noted that he complained of pain and stiffness in his upper back. Dr. Olearczyk referred S. C. for physiotherapy.
Early on December 25, 1998, S.C. developed a bad headache, and sharp back pain followed by stomach pain. He was hospitalized that day and his gallbladder subsequently removed.
Following his surgery, S. C. did not return to work until February 6, 2000. The determination in this case rests on whether he was substantially disabled from performing the essential tasks of his employment until that time, and if so, whether the accident materially contributed to his disability.
S.C. last saw Dr. Olearczyk on January 11, 1999. Dr. Olearczyk noted that S.C. had "recovered from the surgery nicely" but that he still had thoracic back pain. Dr. Olearczyk again recommended physiotherapy.4
Dr. Olearczyk also noted that "[s]ince his symptoms were still mild in nature, we agreed that he would return to work on January 15, 1999."
Dr. Olearczyk concluded that S.C.'s inability to return to work before that date was due mainly to his surgery and post-operative recovery.
A report from S.C.'s surgeon, Dr. H.S. Sohi, dated January 13, 1999, also indicated that S.C. had recovered well from his surgery and had no GI complaints or incisional pain. Dr. Sohi noted, however, that S.C. did complain of lower bilateral back pain and thoracic back pain "which he clearly stat[ed] was present prior to his surgery." Dr. Sohi suspected the pain was related to S.C.'s accident.
S.C. had moved into a new home in Vaughan on January 15, 1999. He also changed family physicians at that time. S.C. testified that he began to see Dr. Luciano Di Nardo, because his practise was closer to S.C.'s home, whereas Dr. Olearczyk's practice was in mid-Toronto.
Dr. Luciano Di Nardo first saw S. C. on January 16, 1999. In a letter to State Farm, dated February 19, 1999, he advised that S. C. had "diffuse tenderness of his upper and lower back with associated decrease in range of motion of his cervical spine and lumbar spine secondary to his pain." He was treated with Tylenol #3 for pain.
Dr. Di Nardo found S.C. unable to work and that his difficulties were the result of his accident. Dr. Di Nardo was hopeful that S.C. could return to work within eight to twelve weeks.
Dr. Di Nardo also noted "a few discrepancies" between the information contained in Dr. Olearczyk's report of February 5, 1999, referred to earlier, and S.C.'s recollection of events, in that S.C. indicated he had complained his pains were severe rather than mild, and that he had not agreed to return to work in January of 1999.
However, in cross-examination, S.C. conceded he had agreed to return to work as suggested by Dr. Olearczyk – but testified that he then felt unwell and Dr. Di Nardo advised him to take two weeks off. He suggested Dr. Di Nardo's comments were either "a misprint or a typing error." S.C. began physiotherapy with Columbus Active Rehabilitation ("Columbus") in the third week of January 1999. The treatment plan submitted by Columbus at that time, indicated S.C. was experiencing cervical, thoracic and lumbar strain, Whiplash Grade II, and that he suffered from headaches. He was found to be unable to work, and the duration of his disability was unknown.
A subsequent treatment plan, dated March 12, 1999, also prepared by Columbus, identified the goals to be pain management, continued strengthening and conditioning exercises, and a work conditioning program – so as to enable S.C. to return to a modified work program.
At the request of the State Farm, S.C. was examined by Dr. R. Zarnett, an orthopaedic surgeon, on February 18, 1999.
At the time, S.C. complained of neck pain, and upper and lower back pain. Dr. Zarnett noted that S.C.'s lower back pain started the day following the accident and that the neck pain started approximately two weeks after the accident. S.C. was also complaining of stiffness in the morning, difficulty sleeping at night, and difficulty turning his head side to side.
Dr. Zarnett found that S.C. had suffered only soft tissue injuries, and should return to work immediately. Given the sedentary nature of S.C.'s job, Dr. Zarnett's view was that no restrictions were necessary. His view was that the passive therapy S.C. was receiving was not appropriate. Dr. Zarnett did, however, recommend three more weeks of active rehabilitation, concentrating on muscle strengthening and endurance. A self-directed exercise program for his neck and back was also recommended, as was an Obus Forme back support.
Relying on Dr. Zarnett's opinion, State Farm terminated S.C.'s benefits, effective March 21, 1999.
S.C. testified that he did not feel well enough to return to work at that time. He felt "slanted or twisted" to the right side, experienced low-back and neck pain and headaches, and was having difficulty sitting, getting up, or bending. At times his children had to assist him in dressing. He maintained that he could not sit for long periods of time. According to S.C., he was also having difficulty concentrating due to a lack of sleep. He attributed the lack of sleep to pain in his lower back.
S.C. described stomach pain running from his belly button to his back. He testified that he did not tell Dr. Zarnett about this pain, or feeling twisted, because those, as well as additional problems developed later.
A Job Site Analysis and an In-home Assessment were conducted by Work Return Inc. in February 1999. It was determined that S.C. worked Monday through Friday from 10:00 p.m. to 6:00 a.m., and that he often worked an additional overtime shift. His job consisted of responding to customers inquires, placing orders and arranging for deliveries of Shopping Channel products to customers through the use of telephones and computers. The work was found to be mainly sedentary in nature, with no significant physical exertion required.
It was noted that S.C. was able to sit for 30 minutes, stand, then sit for 30 minutes etc. He was observed to sit for a period of 1.5 hours with minimal position changes.
A graduated return to work was recommended, with follow-up and monitoring as appropriate. A number of ergonomic solutions were suggested as well as an Obus Forme Back Support and a foot rest.
The Job Site Analysis report dated February 26, 1999, contained the following passage:
Following his motor vehicle accident on November 22, 1998, S.C. took one sick day then returned to working his normal shift. Due to increasing pain, primarily in his low back, and reported muscle spasms, S.C. stopped working on December 24, 1998. He has remained off work since then . . .
When questioned regarding the absence of a reference to his gallbladder operation, S.C. responded that, in any event, he would not have gone to work the day he was hospitalized because of his gallbladder problem, as he felt too ill due to his accident-related problems.
S.C. did not improve and, as indicated earlier, went on to develop numerous other difficulties over the subsequent months. The pain from his belly button to the right side of his lumbar spine continued, occurring every three to four weeks. S.C. also complained of: neck pain, pain radiating to both upper extremities, numbness and tingling in his hand and legs; persistent headaches; voice changes; plantar fasciitis; and, constant fatigue and difficulty with activities of daily living (ADL) tasks. His range of motion decreased and movements were painful. He also complained of difficulty with sustained positions, and that his sitting tolerance was ten minutes, while his standing and walking tolerance were slightly longer.
In addition, his pain became constant, and his overall pain irritability worsened. By October 1999, he had developed rectal bleeding, diarrhea, dizziness and testicular pain.
S.C. agreed that a number of the symptoms he subsequently developed were new, but maintained that the others were consistent from the time of the accident.
S.C. also testified that he developed emotional and psychological difficulties he had not experience prior to the accident. By the spring of 1999 he was showing signs of depression. He described compulsive behaviours related to his concerns about issues of safety, health, fires etc. The behaviours included repeated checking to ensure there were no risks, and always watching for large vehicles which may be following too closely.
On April 30, 1999, S.C. underwent a psychological assessment performed by Dr. John McLachlan. S.C. had numerous complaints and advised Dr. McLachlan that he had slept only three hours the prior night.
However, Dr. McLachlan concluded there was no evidence that S.C.'s various complaints of pain, sleep disturbances, fatigue, memory concerns and related symptoms reflected a primary psychological disorder. He was unable to find any "accident-based psychological diagnoses" that applied in S.C.'s case.
Rather, Dr. McLachlan described S.C., in part, as self-motivating, conscientious, and a person who takes his obligations seriously. He found that S.C. is very strongly motivated to succeed, works hard to achieve goals, is diligent and enterprising. In addition, his self-discipline was seen to be above average and he was viewed as able to follow tasks through to completion.
Consistent with that view, a note from Columbus Active Rehab, dated May 5, 1999, shows that in preparation for his return to work, S.C. was trying to resume his sleep pattern when working. Consequently, he was attempting to stay awake at night and sleep during the day. He testified that he was not successful until he acquired a C-PAP machine, (see below), as sleeping difficulties left him too "dopey."
On May 21, 1999, Dr. Di Nardo started S.C. on Serzone in an attempt to "elevate his mood and control his diffuse symptomatology." Unfortunately, over time, the Serzone caused internal bleeding and S.C. stopped taking it in early July 2000.
In June 1999, S.C.'s treatments with Columbus ended, and he received further treatment at "Woodbridge Therapy." His last treatment was July 11, 2001. S.C. testified that he has reached a plateau and is now working out on his own.
In June 1999, at the request of State Farm, S.C. underwent a psychological assessment conducted by Dr. Vaughan Church, a psychologist.
Dr. Church's view was that S.C. appeared to be experiencing psychological distress. Dr. Church further stated that the distress was likely related to a fear of driving, the stress of being in an accident, ongoing pain, uncertainties about the future, and alterations in capacity.
Dr. Church's diagnosis was of "Adjustment Disorder with Depressed Mood and Specific Phobia-Driving." While treatment appeared to be potentially beneficial, a possible limiting factor was S.C.'s tendency to somatize his distress rather than experience it in a more psychological or phenomenal manner.
Dr. Church recommended ten sessions of supportive counselling, eight sessions of systematic desensitization directed towards S.C.'s driving phobia, and a course in pain and stress management.
In July 1999, S.C. underwent a medical and rehabilitation assessment at the York Central Hospital, a Designated Assessment Centre ("DAC"). At that time, in addition to lower back and neck pain, he complained of multiple joint pain in the prior month, as well as right knee pain and right foot pain. He also complained of difficulty sleeping due to the back pain and nightmares.
S.C. was found to be slightly pain-focussed, but not demonstrating any pain behaviours. His injuries from the accident were found to be resolving, and the thoracic injury appeared resolved. He was somewhat deconditioned. While S.C. attributed the plantar fasciitis in his feet to the accident,5 it was found to result from "longstanding" and pre-existing postural/ structural problems, and not from the accident. Two to three sessions with a kinesiologist for the purpose of instruction in an appropriate home exercise program was viewed to be the only required treatment.
Also, in July 1999, S.C. was assessed at Woodbridge Therapy & Fitness. The diagnosis at the time was cervical strain, lumbar strain, and chronic fatigue syndrome.
Because of his ongoing difficulties, Dr. Di Nardo referred S.C. to Dr. Krystyna Prutis, a physiatrist. In September 1999, based on his complaints, Dr. Prutis concluded that S.C. had sustained moderately severe myofascial cervical strain as a result of the accident. Following a CT scan of the lumbosacral spine in October 18, 1999, a disc herniation central and to the right at L5-S1 was discovered. S.C. did not display symptomology related to that finding and it is unknown whether the disc herniation is related to the motor vehicle accident. However, following a subsequent examination on November 20, 2000, after S.C. had returned to work, Dr. Prutis noted that the herniation was consistent with the details of the accident.
On October 6, 1999, S.C. underwent another medical and rehabilitation DAC assessment at York Active Rehab Centre. Dr. Richard Finkel, a psychiatrist, performed part of the assessment.
Dr. Finkel's view was that although his symptoms would not meet formal criteria for diagnosis of post-traumatic stress disorder S.C. displayed a number of features of this condition. The most clinically significant were irritability and sleep disturbance. Dr. Finkel recommended 15 sessions of cognitive-behaviour psychotherapy focussed on pain and stress management. S.C. was also treated by Dr. Salvatore Mallia, a psychiatrist, for his compulsiveness.
S.C. described these sessions as helpful with both his anxiety regarding safety as well as pain management.
Dr. Di Nardo, was interviewed on December 17, 1999, by Shirley Rolin, an Occupational Therapist from Work Return Inc. At that time, Dr. Di Nardo's diagnosis of S.C.'s condition as a result of the motor vehicle accident was chronic pain syndrome with a post-traumatic stress disorder query and depression query. Dr. Di Nardo also noted S.C.'s condition appeared to be deteriorating since the accident. New symptoms of somatic complaints had contributed to a decrease in emotional state resulting in an increase in physical symptoms.
Relying on his objective findings, Dr. Di Nardo had encouraged S.C. to return to work on a gradual basis in June 1999. However, due to sleeping difficulties S.C. was experiencing, and he was not successful.
Dr. Di Nardo's view was that S.C. was pain-focussed and disabled as a result of ongoing pain, and that his prognosis was poor.
Consequently, Dr. Di Nardo would not medically release S.C. to return to work until he completed another round of therapy recommended by Dr. Prutis. If he improved as a result, Dr. Di Nardo was prepared to release S.C. to a Return to Work Program, with a gradual increase in hours over a six-week period, beginning in mid-end January 2000.
Dr. Di Nardo thought S.C.'s altered sleep pattern and back pain may affect his ability to perform the essential tasks of his employment.
Indeed, in cross-examination, S.C. testified that his difficulty sleeping was his primary problem.
In December 1999, S.C. was diagnosed with a non-restorative sleep pattern and mild sleep apnea. Previous tests in June 1999, were inconclusive due to insufficient data. S.C. maintained he did not have this problem prior to the accident. Rather, it was his position that it had developed over time. He testified that it was the result of his inability to breathe properly. While S.C. testified that he had been told by "specialists" that the sleep apnea developed because of his back pain, there was no medical documentation supporting this assertion.
In January 2000, S.C. underwent another medical and rehabilitation D.A.C. assessment at York Active Rehab Centre. The clinical impression was that S.C’s cervical spine injury had resolved, with residual myofacial tightness. S.C. presented as somewhat pain focussed, with a history of mechanical discogenic low-back pain and significant physical deconditioning. The assessment also revealed a right sacroiliac joint dysfunction and headaches, likely cervicogenic in nature, with a poor sleep pattern contributing. S.C.'s numerous other complaints, including his multiple joint pain, were not seen to be related to the accident.
The only recommended therapy was a trial of chiropractic treatment for two to six weeks. A cervical orthopaedic pillow was also recommended to ease S.C.'s sleep disturbance. Continuation of S.C.'s self-directed home exercise program and anti-inflammatory medication on an as needed basis were also recommended.
In late January or early February 2000, S.C. acquired a C-PAP machine to assist with his breathing at night. He testified that he felt better about one week later, and that once his sleeping problem was addressed, he was able to return to work. He conceded that the mask did not help him cope with the back pain, but assisted him with his breathing, which helped him sleep.
S.C. denied having sleeping problems prior to the accident. However, in a summary letter of her interview with Dr. Olearczyk, dated February 23, 2000, Shirley Rolin, the Occupational Therapist from Work Return Inc., recorded that in 1995, S.C. was treated for sleep disturbance and fatigue. Dr. Olearczyk's notes also show that sometime in the mid-90's (the date is not discernable), S.C. raised the issue of his sleeping pattern at his yearly check-up. Apparently S.C. indicated he was "somewhat tired but coping," and Dr. Olearczyk advised him that he should not be concerned about any physical effects.
On Dr. Di Nardo's advice, S.C. returned to work on a reduced schedule, on February 7, 2000, beginning with a two-hour shift. While S.C. was initially able to maintain the schedule, he subsequently had an allergic reaction to a muscle relaxant he had started taking after the accident. Consequently, he was again off work for another two weeks. When he returned, he did so for five hours per day, having missed the three-hour increment. He resumed his regular eight-hour shift on June 24, 2000. His return to full hours was delayed as difficulty's S.C. was experiencing with the C-PAP machine were not resolved until June 2000.
S.C. testified that he could not return to work earlier because of his pain, and sleeping difficulties. He advised that while physiotherapy helped him return, he continues to experience difficulty at work in that he often feels confused and tired because of the medication he takes. He continues to experience pain all over his body and must get up often and take frequent breaks. He is being tested for fibromyalgia. He also testified that he has developed irritable bowel syndrome since the accident. He pointed out that since his return, he has taken eight sick days due to his difficulties whereas prior to the accident he had been in excellent health, and had missed only two days in six to seven years of employment.
S.C. indicated that his employer has generally been accommodating of his needs but that not all the promised alterations to his work station had been implemented.
In a report to Dr. Di Nardo, dated August 2, 2000, Dr. Prutis indicated that S.C. had resumed work at regular hours, and that it was "a great effort for him to work a full day."
In a letter to S.C.'s counsel, dated April 13, 2001, Dr. Di Nardo states that in his opinion, during the period at issue, i.e., March 20, 1999 to February 7, 2000, S.C. was disabled from performing the essential tasks of his employment due to:
Chronic Pain syndrome involving his upper and lower back (evidence on CT scan of L5-S1 disc bulge)
Post-traumatic stress disorder and secondary depression as a result of the accident requiring the use of medication.
Dr. Di Nardo states that S.C. continues to have multiple symptoms and requires weekly supervision of his condition. He notes that he is on numerous medications in order to maintain his level of functioning, and that he is still under a tremendous level of financial stress due to the income he lost as a result of his accident.6
Due to S.C.'s "complicated and interactive physical and psychological distress" he was seen again by Dr. Church, psychologist, on November 22, 2000 and March 27, 2001 – after his return to work.
The results of the two assessments were very similar, and led Dr. Church to conclude that S.C. suffered from "psychological distress, particularly in the forms of anxiety, depression, "confusion," obsessions, and paranoid thoughts." Dr. Church found that:
The nature of the distress may be partially masked, however, by [S.C.'s] tendencies to somatize, to avoid, and to employ dissociative mechanisms. Nevertheless, it appears safe to say that S.C.'s psychological turmoil is significant. It almost certainly bears some relationship to the stress of having been in an accident, to ongoing physical disorders and pain, to functional incapacity at home and at work, to financial difficulties, and to uncertainties about the future.
Dr. Church's found that the criteria for a diagnosis of Major Depressive Disorder-Single Episode and Obsessive-Compulsive Disorder had been met, but felt that prudence suggested that the official diagnosis be left in the hands of a medical specialist trained to deal with any relevant interactions between S.C.'s psychological and medical conditions or the treatment of the latter.
It should also be noted that a separate issue arose regarding S.C.'s application for benefits. He initially testified that he had not intended to claim accident benefits. However, he filled out an Application for Accident Benefits (OCF-1/59) and Activities of Normal Life form (OCF-12) on January 8, 1999.
S.C. at first testified that he filled the forms out at the urging of Dr. Olearczyk. He then conceded that he had brought them to Dr. Olearczyk to be completed.
In re-examination, S.C. testified that the forms had been sent to him by State Farm after the Insurer was contacted regarding repairing the family's vehicle – and that State Farm advised him to complete the forms. I note that the letter sent to S.C. by State Farm, dated November 27, 1998, indicates that the Insurer requires a completed Disability Certificate.
State Farm characterized these actions as an early attempt to collect benefits, and argued that S.C. had changed family physicians in an attempt to find one that would state that he was disabled – which Dr. Olearczyk was not prepared to do.
However, I find this to be inconsistent with S.C.'s almost immediate return to work, and his continued attendance for almost one month.
An examination of S.C.'s answers to the "Activities of Normal Life," dated January 8, 1999, further undermine this interpretation. While S.C. indicated he was having some difficulties, he did not claim to be disabled in any area.
I also note that, as pointed out by his counsel, S.C. was interested in receiving therapy to deal with his injuries from the accident and could not do so without filling out the forms.
Consequently, I do not find that this issue assists State Farm in making its case and will not address it further.
Argument:
S.C. argued that the evidence regarding his difficulties is clear, and that in order to find he is entitled to benefits it is not necessary to determine the actual nature of the disability – only that the accident materially contributed to his disability.
S.C. argued that he was a "reluctant claimant" and pointed to his return to work following only one day off after the accident, as well as his continuing to work for almost one month, as an indication that he was motivated to continue working.
S.C. maintained that his accident-related difficulties existed prior to the gallbladder operation and that the operation itself simply accelerated his exit from the work force.
He also pointed out that Dr. McLachlan described him as a motivated individual who takes his obligations seriously, is very strongly motivated to succeed, and works hard to achieve goals.
S.C. noted that no one had indicated his injuries are inconsistent with the nature of the accident – and that while the DAC reports at times took issue with a particular treatment, none found further treatment was not required. In particular, S.C. pointed out that the recommendation of the York Active Rehab Centre in October 1999, was that he receives up to 15 sessions of cognitive behaviour psychotherapy focussed on pain and stress management.
State Farm argued that S.C. had not met the onus of proving his difficulties arose as a result of the accident.
State Farm argued that the accident in which S.C. was involve was relatively minor, and resulted in what were initially minor symptoms.
State Farm pointed out that Dr. Zarnett was not advised of S.C.'s complaints of depression, sleeping problems etc. at the time of his examination in February 1999, and that S.C. agreed the symptoms of distress and post-traumatic shock did not exist within the first few months of the accident.
The Insurer also noted that S.C.'s initial complaints were primarily regarding his upper back, and that most of the other complaints arose well after the accident – giving rise to issues of credibility.
State Farm also maintained there were no objective findings which support S.C.'s claims of disability, and to the extent links were drawn between his professed symptoms and his accident, such as in the case of the herniated disc, these links were based on inaccurate information that was provided by S.C.
State Farm also referred to the Job Site Analysis report, dated February 26, 1999, which indicated S.C. had stopped working on December 24, 1998, due to increasing pain, primarily in his low back, as well as muscle spasms – with no reference to his gallbladder operation.
In addition, the Insurer pointed out that any driving phobia S.C. developed was not significant enough to keep him from driving to work for the period of time between the accident and his gallbladder problem.
In addition, State Farm relied on the report of Dr. John McLachlan, who in May 1999, found no "accident-based psychological diagnoses" that applied to S.C.
The Insurer also maintained that none of S.C.’s examiners indicate his problems arose as a result of the accident.
State Farm relied on S.C.'s early return to work after the accident, to argue that it was equally plausible that the gallbladder operation, which was more serious, caused the deterioration in S.C.'s condition.
While the Insurer did not dispute that S.C.'s gallbladder operation resolved well, it also argued there were no objective evidence linking S.C.'s subsequent difficulties to the accident.
Rather, State Farm argued that S.C.'s failure to return to work was because of his sleep problems, not pain, and that the sleep problems predated the accident. State Farm maintained that anyone in S.C.'s circumstances would have sleep-related problems.
State Farm also relied on the references to S.C.'s tendency to somatosize his distress in arguing his difficulties were unrelated to the accident.
The Insurer also took issue with S.C.’s characterization of himself as "motivated." Rather, it argued that given the number of persons telling S.C. he should attempt to return to work, and given the sedentary nature of his work, his failure to do so showed he was unmotivated. Rather, State Farm suggested that S.C. had an interest in remaining disabled in an attempt to succeed in his tort claim.
In the end, State Farm did not dispute the deterioration in S.C.'s condition. Rather, it pointed out that he returned to work at a time when his symptoms were more numerous and significant than when he ceased working. That being the case, State Farm argued he should have been able to return by the time his benefits were terminated – particularly as the evidence showed S.C.'s employer was prepared to accommodate his difficulties.
In reply, S.C. argued that even if he was prone to somatize as a result of his difficulties, this does not affect his entitlement, as the thin-skulled rule applies.
S.C. also maintained that the deterioration in his condition over time was consistent with a realization of greater problems than initially appeared to be the case, as well as frustration resulting from his situation and growing financial burden.
Analysis:
In order to continued to qualify for benefits, S.C. must show that as a result of the accident, he suffered a substantial inability to perform the essential tasks of his employment.
Consequently, the issue to be determined is whether, as a result of the accident, S.C. was substantially disabled from performing the essential tasks of his employment at the time his benefits were terminated and until he resumed work at his pre-accident hours.
I take no issue with State Farm's position that the objective evidence does not support a finding that S.C. was disabled. The inquiry does not end there, however.
The lack of objective findings, in and of itself, does not preclude entitlement to benefits. It has long been recognized that individuals respond to traumas and physical injuries in different ways. Some experience serious injuries which resolve quickly and completely. Others, for a variety of reasons, do not recover as quickly as expected from seemingly minor injuries.
S.C. appears to be an emotionally and psychologically fragile individual struggling with a life many would find difficult. He consistently worked the night shift, often for six days each week. Sleeping difficulties and exhaustion date back as far as 1995. He saw his wife only intermittently during the week as their parenting responsibilities kept them on different schedules.
However, S.C. had successfully managing for years. He was attending work regularly, had just bought a new home, and was not receiving any treatment or suffering from any conditions out of the ordinary. The only records of prior sleeping difficulties date back to the mid-nineties.
I accept Dr. MacLachlan’s view that S.C. is motivated to maintain and better his circumstances. This was demonstrated by his frequent six-day work weeks, his job search before the accident, and his return to work only one day off following the accident. I find that his motivation to return to work was demonstrated by his efforts in May 1999 to recreate his sleep patterns – as he saw his sleeping difficulties as a major impediment to his return.
On its face, it appears that S.C. suffered minor injuries in the accident, and was well on his way to full recovery until his gallbladder operation.
Admittedly, S.C.'s ability to work until his gallbladder operations does give one pause. However, he describes a deteriorating condition up to that point – and one that he struggles with today.
I found S.C. credible in his description of his various medical difficulties, and I find that while he had returned to work following the accident, he continued to suffer pain and discomfort and to seek the assistance of physicians to deal with it. He remained on pain killers. I further find that over time his condition deteriorated emotionally, psychologically, and in terms of the nature of his physical difficulties.
This brings us to the question of whether these difficulties are related to his accident.
While S.C.'s absence from work was initially related to his gallbladder operation, no one who assessed S.C. suggested that his subsequent deterioration and inability to return to work resulted from that operation.
In S.C.'s mind, at least, that left the accident. As a result, he attributes all difficulties he is experiencing to that event, including difficulties he is experiencing with his feet. Certainly he links his inability to sleep to the accident. While I am of the view that he truly believes the accident was the cause of all his difficulties, I find his evidence with regard to the evolution of these problems to be unreliable.
The various medical reports contain a number of inconsistencies that S.C. told various examiners. Having become convinced the accident was central to his woes, he appears to have interpreted the history of his problems through that lens.
That having been said, I disagree with State Farm that none of S.C.'s examiners linked his difficulties to his accident.
Dr. Di Nardo's diagnosis was one of chronic pain syndrome, post-traumatic stress disorder and secondary depression, resulting from the accident. In addition, Dr. Church found that S.C.'s psychological turmoil was significant, and that it "almost certainly bears some relationship to the stress of having been in an accident . . ."
I find the deterioration in S.C.'s mental condition, and in particular, his obsessive behaviour and fears, clearly link his condition to the accident. His tendency to somatize his symptoms is consistent with the largely unexplained deterioration in his physical condition.
It may be that the gallbladder operation was what finally pushed S.C. beyond his ability to cope. Or perhaps his condition, already deteriorating, would have reached that point without the operation – just at a later point. However, as noted above, no one suggests the operation is the reason for his further deterioration.
In any event, considering all the circumstances, I am satisfied that the accident materially contributed to S.C.'s mental and physical deterioration, creating the causal connection required by the Schedule.
This leaves the question of whether S.C. was substantially disabled from performing the essential duties of his employment up to the point of his full return to work, or whether he was able to return to work prior to when he did.
State farm points out that as S.C. still suffers from his various difficulties, which appear greater now than when his benefits were terminated – yet he is able to work. Consequently, State Farm argues that this demonstrates S.C. could have returned to work earlier, when his symptoms were less significant, and when the consensus amongst those assessing him was that a gradual return to work was appropriate.
This position does not acknowledge the change the C-PAP machine made to S.C.'s situation. In my view, it represented a significant turning point in that he was then able to get a better night's sleep.
At the time he was diagnosed with sleep apnea, his sleep was found to be "non-restorative." While he may have had difficulties with his sleep before the accident, he coped and maintained a good attendance record. It was only after the accident that his condition deteriorated.
State Farm argued that there was nothing to indicate that S.C.'s sleeping problems were related to the accident, and that in any event, his sleeping problems in June were too minor to be responsible for his continued absence from work.
While I make no finding in this regard, I do not agree it is necessary to show that each element of S.C.'s difficulties is related to the accident. Rather, in my view it is sufficient to show, as I have found, that his accident materially contributed to his overall difficulties. In this instance, S.C.'s inability to achieve restorative sleep robbed him of a significant element of his diminishing arsenal of strengths to deal with his situation.
Consequently, I find that his lack of restorative sleep, combined with his deteriorating emotional and psychological condition, which was linked to the accident, resulted in a substantial inability to perform the essential duties of his job.
While a gradual return to work was recommended or supported by a number of assessors at an earlier stage than when S.C. returned, these recommendations were based on the lack of objective evidence regarding his physical difficulties. This is also the case regarding Dr. Zarnett's view that S.C. could return to work immediately. The degree of S.C.'s emotional and psychological distress did not become apparent until some time later. It may be that, as suggested by Dr. Church, his tendency to somatize his distress resulted in an inappropriate focus on his physiological situation and diverted attention from what appears to be the truly debilitating aspects of his condition, i.e. chronic pain, chronic fatigue and post-traumatic stress syndrome.
In my view, there is no apparent time period before his return to work that S.C. did not continued to struggle with his situation and try to find a way to return to work. His efforts, in May 1999, to recreate his sleep patterns are consistent with those efforts. I also note that he started psychotherapy sessions in November of 1999, and continued until May 2000. This too no doubt assisted in his return to work, as did the C-PAP machine. Consequently, I find there is no indicator that signals he would have been able to return to work at some identifiable earlier date. The fact his condition was deteriorating even as he did return makes this an even more difficult determination, and in these circumstances does not lead me to conclude he could have returned to work earlier.
Rather, I find that S.C. was honest and motivated in his efforts to return to work in spite of his increasing difficulties. I find that his efforts and rate of return to work were reasonable. To penalize him because he was not successful earlier would be to deny his efforts and ignore the changes which assisted in his return.
Consequently, I find that S.C. was substantially disabled from performing the essential duties of his employment from March 21, 1999, until he returned to full-time employment on June 26, 2000. He is entitled to IRBs, with interest, for that period of time, calculated to reflect his gradual return to work.
EXPENSES:
In the event the parties are unable to agree about arbitration expenses, Rule 77 of the Practice Code sets out the process for requesting an assessment of expenses.
October 19, 2001
Tanja Wacyk
Arbitrator
Date
Neutral Citation: 2001 ONFSCDRS 151
FSCO A00B000571
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
S.C.
Applicant
and
STATE FARM MUTUAL AUTOMOBILE 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:
State Farm shall pay S.C. Income Replacement Benefits, with interest, from March 21, 1999, until he returned to full-time employment on June 26, 2000. The quantum of benefit shall reflect his gradual return to work.
I may be contacted if the parties are unable to agree on arbitration expenses.
October 19, 2001
Tanja Wacyk
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
- S. C. could not recall the type.
- S. C. has a college level degree in Accounting and is on- half a credit short of a Bachelor of Arts degree majoring in Economics.
- S.C. testified that he had not started physiotherapy yet as there had been a number of storms that year and he had been looking for a treatment centre close to Woodbridge where he was living with his in-laws at the time.
- Those difficulties started in March 1999, and he now wears an orthotic insert.
- S.C.'s testified that his new house is mortgaged on the basis of his and his wife's combined salary.