Neutral Citation: 2001 ONFSCDRS 21

FSCO A97-001568

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

STOJNA BOGOJEVSKI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Suesan Alves

Heard:

July 5, 6, 7, 1999, December 13, 14, 16 and 17, 1999, and February 17, 23, and 25, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto. Further exhibits were filed on consent on March 10, 2000

Appearances:

Linda Wolanski for Mrs. Bogojevski

Harry P. Brown for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Stojna Bogojevski, was injured in a motor vehicle accident on August 31, 1995. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated her weekly income replacement benefits effective October 3, 1996. The parties were unable to resolve their disputes through mediation, and Mrs. Bogojevski applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The parties withdrew the issues of the amount of initial entitlement, deduction of collateral payments, post-accident earnings from employment and entitlement to a special award. They agreed that the amount of Mrs. Bogojevski's weekly income replacement benefit was $456.58. Over the course of the hearing, the Applicant applied for mediation with respect to various treatment related expenses, and these claims were added to the issues to be arbitrated on consent.

The issues in this hearing are:

1. Is Mrs. Bogojevski entitled to income replacement benefits from October 4, 1996 forward?

2. Is Mrs. Bogojevski entitled to the cost of a heating pad, aquafit, transportation to treatment, and treatments for shiatsu, acupressure, and massage, as supplementary medical expenses under section 36 of the Schedule?

3. Is Mrs. Bogojevski entitled to her expenses in respect of the arbitration?

Mrs. Bogojevski claims interest on overdue benefits.

Result:

1. Mrs. Bogojevski is entitled to income replacement benefits from October 4, 1996 until such time as State Farm discharges its obligations in respect of the loss of earning capacity provisions under the Schedule.

2. Mrs. Bogojevski is entitled to $ 2,392.58 for the cost of a heating pad, aquafit classes, transportation to treatment, and treatments for shiatsu, acupressure and massage as supplementary medical expenses under section 36 of the Schedule.

3. Mrs. Bogojevski is entitled to interest on overdue benefits under section 68 of the Schedule.

4. If the parties are unable to agree on expenses, that issue may now be addressed.

EVIDENCE AND ANALYSIS:

Entitlement to income replacement benefits

Background

Stojna Bogojevski was injured in a motor vehicle accident on August 31, 1995. She was born in Macedonia in 1942, where she obtained the equivalent of about Grade 7, then worked on a farm planting vegetables. She immigrated to Canada in 1971, with her husband and children. Mrs. Bogojevski speaks some English. She has worked at two meat packing plants since her arrival in Canada: Vaunclair Meat Purveyors, between 1971 and 1980 and Quality Meat Packers between 1981 and 1995. At the time of the accident Mrs. Bogojevski was 53 years of age. She lived with her husband, the older of her two adult daughters, and her sister-in-law, a deaf mute, who has lived with her family for about ten years in Canada, and also in Macedonia.

Pre-accident employment

At the time of the accident, Mrs. Bogojevski was employed as a meat packer at Quality Meat Packers in the portion control department, layering and packing semi-frozen pork chops into boxes for export to Japan. Each chop weighed between 40 and 100 grams. A full box of chops weighed approximately 5 kilograms. Mrs. Bogojevski stood with other packers at a double conveyor belt, and next to a packing table. She placed an empty box on the packing table, inserted a sheet of plastic film, retrieved a stack of 8 to 10 pork chops at a time with one hand from the upper conveyor belt, used fast finger motions to arrange the chops in layers, and formed 4 lines of chops on the sheet of film. She repeated this process until the box contained 4 to 5 layers. She closed the box by folding the end panels, then moved it about 10 inches and placed it in a chute. The chute guided the box onto the lower conveyor belt. She packed between 13 and 15 boxes per hour. After an hour she moved to the other side of the line and used her opposite hand to retrieve and layer the chops.

Mrs. Bogojevski worked between 6:00 a.m. and 2:30 p.m. with two breaks of 15 minutes and one half hour lunch break, 5 days a week. During her shift, she stood for 6 or more hours, sat for 0.25 hours or less, and walked 0.25 hours or less. She occasionally stooped, reached above and below her shoulders, talked and lifted up to l0 lbs. Her job primarily involved standing and upper body motions. There were constant demands for dexterity, reaching, handling objects using her fingers, for feeling, hearing, seeing and balance.

The temperature in the meat packing room at Quality Meat Packers was maintained between 40 and 50 degrees Fahrenheit, to minimize bacterial growth. The pork chops she handled were tempered by chilling them to 26 or 27 degrees Fahrenheit to avoid breakage. She wore a freezer coat, a hat, rubber gloves, sanitary gloves and safety boots.

Mrs. Bogojevski alleges that she is substantially disabled from working at her job as a result of the injuries she sustained in the motor vehicle accident of August 31, 1995. In this arbitration she claims entitlement to income replacement benefits from October 4, 1996 and various supplementary medical benefits. State Farm disputes her entitlement to all benefits claimed.

Pre-accident condition

Mrs. Bogojevski's injuries in the August 1995 accident were initially diagnosed as a myofascial strain to her neck and upper back. In the six years before the August 1995 motor vehicle accident, Mrs. Bogojevski sustained soft tissue injuries to her neck and low back in two motor vehicle accidents, and in two falls. She had complained of bursitis in her right shoulder on and off for several years. In 1994, she had been diagnosed with chronic mechanical low back pain localized mainly to her sacroiliac joints, and had attended group sessions for chronic pain counselling. That year she also complained of problems with sleep to Dr. G. Ko, the physiatrist treating her low back pain.

The clinical notes and records of her family physician, Dr. H. D. Cheung, refer to neck pain on approximately thirty-one occasions and to back pain on approximately forty-one occasions between 1987 and 1994.² Those notes also reflect her complaints that her pain was aggravated by cold at the meat plant, in damp weather, and at night. Drs. Ko, and Kachooie, both physiatrists who treated Mrs. Bogojevski, and Dr. Cheung, all testified that in all likelihood, Mrs. Bogojevski would have continued to experience pain in her neck and low back even in the absence of the August 1995 accident.

Mrs. Bogojevski wore a full corset to work and had ongoing complaints, took medication and had frequent medical attendances. She had been diagnosed with osteoarthritis in her knees and in the small joints of her hands, in 1991,which worsened somewhat in 1994. She also sustained work related injuries. While she was temporarily disabled as a result of some of her injuries and took blocks of time off work to recuperate, she worked despite her ongoing difficulties. Following each of her work related injuries, her employer reported to the Workers' Compensation Board that Mrs. Bogojevski had returned to work as soon as she was able to do so.

State Farm questioned the more than 100 dashes which recurred on her attendance record in each year. I find these dashes reflect weekends, when Mrs. Bogojevski was not ordinarily required to work; not ongoing weekly absences from work due to illness or disability.

Mr. A. J. Rauth, a 33-year employee with Quality Meat Packers, and a supervisor, testified that he hired Mrs. Bogojevski in April 1981 as a packer. Between 1981 and 1994, he was able to observe her during 4 to 6 hours of her 8-hour shift. Mr. Rauth testified that from the day he interviewed her until his transfer to the downtown plant in May 1994, a period of some 13 years, Mrs. Bogojevski was very reliable, always punctual, did the job assigned to her quickly and accurately, and got along well with her co-workers.

In May 1999, Dr. A. I. Margulies, psychiatrist conducted an insurer's examination at State Farm's request. He also reviewed the decoded OHIP summary of services provided to Mrs. Bogojevski pre-accident. That summary showed numerous billings for psychotherapy provided by her family physician since May 1991. Dr. Margulies reported that Mrs. Bogojevski denied pre-accident involvement with mental health professionals, and concluded she had a pre-existing psychiatric disorder or serious emotional problems which she deliberately concealed.

Based on the clinical notes and records of Mrs. Bogojevski's family physician, Dr. Cheung, his testimony and the evidence of Dr. N. C. S. Doxey, a psychologist who assessed Mrs. Bogojevski at the request of her counsel, I find that Mrs. Bogojevski responded to episodes of stress and to her injuries with anxiety. I accept Dr. Cheung's testimony that each of Mrs. Bogojevski's episodes of anxiety resolved after he provided advice, reassurance and support. I also accept Dr. Doxey's assessment that Mrs. Bogojevski was the sort of patient who routinely talked with her doctor about whatever was troubling her during her medical appointments with him. I also accept his evidence that most persons would be surprised to find that chats with their family doctor about work stress during a checkup had been labelled as psychotherapy. He testified that he did not believe for one moment that this "unsophisticated lady ever thought of her chats to her family doctor as psychotherapy."

I accept Dr. Doxey's opinion that had Mrs. Bogojevski been suffering from a serious emotional problems pre-accident, Dr. Cheung would have referred her to a psychiatrist or other mental health professional, prescribed drugs for anxiety or depression, and made a formal diagnosis of a psychiatric disorder. I accept Dr. Cheung's evidence that prior to her motor vehicle accident of 1995, he did not refer Mrs. Bogojevski to a psychiatrist, nor prescribe medication for anxiety, and she did not meet the DSM-IV criteria for diagnosis of an anxiety disorder. I also accept Dr. Doxey's opinion that Mrs. Bogojevski has a predisposition to anxiety reactions, and that prior to the accident, she was somewhat emotionally vulnerable.

I prefer the evidence of Dr. Cheung with respect to Mrs. Bogojevski's pre-accident mental health, to that of Dr. Margulies. At the time he reached his conclusion on this issue, Dr. Margulies did not have the benefit of Dr. Cheung's input. Dr. Cheung treated Mrs. Bogojevski on a frequent basis. His opinion is supported by that of a psychologist, Dr. Doxey, and by a psychiatrist, Dr. P. Butler.

I conclude Mrs. Bogojevski had significant, but manageable pre-accident conditions, despite which she worked and shared the daily activities involved in running the household with her husband and daughter.

Post-accident condition

The Applicant's evidence

On August 31, 1995, Mrs. Bogojevski was rear ended while stopped at a red light. That afternoon, her husband took her to see her family doctor, Dr. Cheung. She complained of neck and upper back pains with a burning sensation. On examination, Dr. Cheung noted tight, tender paracervical, and sternocleidomastoid muscles, (neck muscles ) the top of her trapezius muscles (shoulders) upper dorsal spine muscles (upper back) and a reduced range of motion. He diagnosed a myofascial strain to the cervical and dorsal areas of her spine and prescribed analgesics and anti-inflammatories.

Mrs. Bogojevski rested the following day, and over the Labour Day long weekend. She returned to work on September 5, 1995. The clinical notes of her family doctor indicate that initially, her symptoms of neck and upper back pain were clearing well; however, she had increased pain with prolonged use or cold. Towards the end of September, she experienced pain radiating from her spine across her back to her rib cage. She developed severe headaches, stiffness and burning over her neck and mid-back. Eventually her shoulders and neck became stiff and painful to move, and she returned to her family physician towards the end of September, 1995. Dr. Cheung prescribed rest and physiotherapy.

Mrs. Bogojevski attended Markville Physiotherapy and was treated with intensive muscular stretching and cervical spine mobilization. In November 1995, her physiotherapist, Mr. J. F. Yam, noted her acute symptoms had stabilized, and her occipital headaches and dizziness had subsided. He recommended that Mrs. Bogojevski return to work in the week of November 20, 1995 for four to six hours a day and build her tolerance for work. At the same time, she should continue with an active graded strengthening program for her shoulder girdle and periscapular area three times per week. Dr. Cheung testified that at the time Mrs. Bogojevski still had problems with pain, restricted movements and limitations. However, since Mrs. Bogojevski wanted to return to work, he agreed to support the physiotherapist's recommendation, and see how things went.

Mrs. Bogojevski returned to work on November 20, 1995 at her former job. She experienced pain at the back of her neck when she used her hands, and found that she could not work at the required speed. She experienced headaches, particularly in her occipital area. Her muscles were stiff from the cold and she experienced a major aggravation of neck, mid and low back pain as well as chest pain. Her employer offered her work in two other departments. However, she found those jobs more difficult than her regular job. Mrs. Bogojevski testified she spoke with her foreman and a supervisor about a lighter job, but was told to go home, get healthy and then return to work. On November 21, 1995, her employer asked her to have further investigations with her family physician before she could resume work. A series of cardiovascular examinations were carried out; however no cardiac abnormality was detected. Mrs. Bogojevski has not returned to work since that time.

Mrs. Bogojevski continued with physiotherapy. In mid-December 1995, her physiotherapist noted that Mrs. Bogojevski's complaints focussed more on stiffness and pain over her mid-thoracic and lower lumbar areas. She complained that she could not tolerate more than one hour of standing, and worried that she would be unable to return to her job which required her to stand for seven hours. On examination, her physiotherapist found multiple tender sites over her paraspinal muscles in her thoraco-lumbar area, and some restriction in active lumbar movements. The focus of her physiotherapy treatment then became postural strengthening and cardiovascular training to increase her standing tolerance and functional capacity. Although Mrs. Bogojevski attended her physiotherapy sessions, her painful symptoms and stiffness were largely unchanged. Mr. Yam recommended a referral to a pain management clinic.

Dr. Cheung testified that by the end of 1995, Mrs. Bogojevski became more despondent and her outlook more pessimistic. She continued to have various aches and pains and showed more and more signs of a clinical depression, such as sadness, crying spells, tearfulness, sleep disturbance, disinterest in things in which she used to take an interest, lack of energy and libido, and suicidal ideation. He prescribed anti-depressants.

Dr. Cheung referred Mrs. Bogojevski to Dr. G. Ko, a physiatrist who had treated her prior to this accident. Dr. Ko referred her to H.P.B.C. Rehabilitation where she obtained hydrotherapy three times per week. He also recommended a functional recovery program at the Health Recovery Clinic, because, in his opinion, such a program offered some chance that she could return to work. This clinic was prepared to accept Mrs. Bogojevski; however, neither State Farm nor Mrs. Bogojevski's disability insurer were prepared to fund the program. Dr. Ko testified that he then attempted to patch together whatever services might be available from OHIP to assist Mrs. Bogojevski. However, she would not have the benefit of a case co-ordinator or of a team approach.

In March 1996, x-rays of Mrs. Bogojevski's cervical spine demonstrated very mild degenerative changes at C4-5. A bone scan demonstrated slight degenerative changes to her right knee, and to both ankles. In about April 1996, Dr. Ko referred Mrs. Bogojevski to a psychologist, Dr. B. Gottfried, for treatment of her post-traumatic stress, depression, anxiety, irritability, driving and anticipatory phobia, disturbed sleep, constant headaches and chronic pain. She attended for a short time because of insufficient funding.

In August 1996, Mrs. Bogojevski was assessed by Dr. B. Ticoll, psychiatrist on a referral from Dr. Ko. In his opinion, Mrs. Bogojevski had a well preserved range of motion of her shoulders and cervical spine and mild tenderness generalized over her cervical musculature. In his opinion, she was suffering from a depressive illness, somewhat improved over the past month, and a fairly severe sleep disturbance. He recommended anti-depressants, and opined that she might also require benzodiazepine medication for sleep, administered in fairly low doses. He also recommended further physiotherapy and treatment of a hands-on variety, especially treatments such as massage therapy.

In August 1996, Dr. A. Kachooie, physiatrist, assessed Mrs. Bogojevski at the request of her counsel. He found Mrs. Bogojevski had restricted range of motion in her cervical spine, diffuse soft tissue tenderness of her neck muscles and of her trapezius, and of her rhomboids or shoulder blade muscles. She was tender over the greater occipital nerve and he could reproduce her headaches. He concluded that she had suffered whiplash, had occipital neuralgia headaches, fibromyalgia, insomnia and low back pain. He found her markedly depressed and recommended anti-depressants, medication for her headaches, insomnia and pain, and a structured multi-disciplinary rehabilitation program.

In Dr. Kachooie's opinion, Mrs. Bogojevski long-term prognosis was guarded considering her age, the severity of her musculoskeletal problems and her job description. In his opinion, she was a poor candidate for vocational rehabilitation given her lack of transferable skills. While her two previous motor vehicle accidents and a work related accident contributed to her ongoing low-grade pain in her neck and low back areas, she had been functional prior to the motor vehicle accident of August 31, 1995. In his opinion, the most important contributing factor to her current level of limitation and disability was the motor vehicle accident of August 31, 1995.

In August 1996, Dr. J. W. Digby, rheumatologist, assessed Mrs. Bogojevski at the request of her counsel. In his opinion, she has a low-grade chronic pain syndrome as a result of several accidents and had an aggravation of these symptoms in her accident of August 1995 which continues to dominate her life. Dr. Digby was of the opinion that Mrs. Bogojevski's pre-accident low back pain was not specifically aggravated in the 1995 accident; she began noticing increased low back pain four or five months later, coincident with significant weight gain and deconditioning. In his opinion, she stopped work in 1995 as a result of the painful injury to her neck, upper and mid back that occurred in the motor vehicle accident of August 1995. In his opinion these symptoms were dominant, significant and prevented her from working at the time of his assessment.

In October 1996, Mrs. Bogojevski saw Dr. D. M. Mehta, who specializes in rheumatic and metabolic bone disease, on a referral from Dr. Ko. He noted her complaints of musculoskeletal pain, tiredness, depression, and inability to function adequately. Dr. Mehta reported that the pain in her muscles was perhaps secondary to trauma, and recommended treatment with whatever modality would provide her with pain relief.

In November 1996, Dr. Cheung gave Mrs. Bogojevski injections with cortisone for her ligament pains. In June 1997, Dr. Ko noted persistent right neck pain radiating to her right shoulder blade down her right arm and occasionally to her head. Mrs. Bogojevski complained of pain in the lower part of both her right and left rib cage, and pain in her right knee with excessive walking. She found the soft tissue injections Dr. Ko recommended too painful. Dr. Ko referred her for myofascial therapy treatment, and for more chronic pain counselling. He recommended that she continue a regular exercise routine, and maintain good nutrition and sleep hygiene.

In December 1997, Dr. Ko saw her with complaints of persistent right shoulder pain which he diagnosed as having features of right rotator cuff tendinitis. Dr. Ko referred her to Dr. S. Appleton, a neuropsychiatrist with interests in chronic pain and acupuncture, for assistance with her neck, right shoulder and leg pain which he felt were of a soft tissue nature, and for management of her depression.

Dr. Appleton arranged for night sleep studies, which indicated that she slept three out of eight hours with poor sleep efficiency. She had sleep apnea and was referred for a CPAP. In addition to her sleep disorder, dysthymia and pain/stress-related depression, he concluded that there was definitive evidence of a neurocognitive dysfunction with impairment of retention/recall, information-processing, concentration and word-finding. He recommended neurocognitive testing to rule out a minor post-traumatic head injury. In his opinion, Mrs. Bogojevski's global assessment of functioning was 60, indicating life functioning disruption and decline.

In December 1997, Dr. C. Geenen, neurologist, conducted a neurological assessment with respect to Mrs. Bogojevski's problems with short-term memory at the request of Dr. Cheung. In her opinion, Mrs. Bogojevski has chronic pain syndrome, is somewhat depressed, and her poor concentration and sleep have resulted in her difficulty retaining information. Dr. Geenen recommended a psychiatric consultation.

In January 1998, Dr. Kachooie reported that Mrs. Bogojevski continued to complain of pain in the top of her shoulders, base of her neck, chest wall, right arm, lower back, waist, right lower leg, knees and right groin. She was also reporting frequent headaches, difficulty with walking distances, shortness of breath, interrupted sleep, tiredness and fatigue. She was tearful and disappointed that her treatments to date had not been effective. In Dr. Kachooie's opinion, she had chronic pain syndrome due to myofascial pain, post-traumatic fibromyalgia, supraspinatus tendinitis affecting her right shoulder, mechanical low back pain, bursitis contributing to symptoms of pain in her knees, depression, post-traumatic stress disorder and functional limitation. He recommended active physiotherapy and conditioning exercises, and nutritional counselling for weight reduction. In Dr. Kachooie's opinion, Mrs. Bogojevski will continue to suffer from fluctuating levels of pain and functional limitation.

In June 1998, Mrs. Bogojevski began occupational therapy because she had trouble making beds, vacuuming, and doing her usual housework. After two sessions her pain was made worse.

In October 1998, Mrs. Bogojevski was assessed by Dr. Doxey, psychologist. She seemed downhearted, listless and despondent. In his opinion her pain has come to represent a major source of preoccupation and distress. In Dr. Doxey's opinion, she was severely depressed and met the DSM-IV criteria for a Major Depressive Disorder, chronic, of mild severity, and for a pain disorder associated with both psychological factors and a general medical condition. Dr. Doxey testified that in the case of a major depressive disorder, a significant impairment of functioning in the work environment is expected if that depression is at a mild level; if at a moderate level, then the person is not expected to be able to function at all.

In Dr. Doxey's opinion, the clear deterioration in Mrs. Bogojevski's emotional functioning post-accident was directly and causally linked to the August 1995 motor vehicle accident and its sequelae. Dr. Doxey noted that Mrs. Bogojevski's symptoms of depression emerged in November 1995 and increased up to the time he assessed her. He testified that her symptoms increased, as he would expect, because on this occasion, unlike her past accidents, her pain levels did not disappear or improve to the point that she could return to her previous level of functioning. Mrs. Bogojevski was therefore contending with frustration, disappointment, as well as the loss and mourning of her health, of her ability to function at home, socially, recreationally and at work. In his opinion her depressive symptoms would be expected to worsen when she did not see her recovery following the expected time course.

Dr. Doxey attributed Mrs. Bogojevski's memory and concentration difficulties to her level of emotional distress. He agreed that Mrs. Bogojevski's depression and chronic pain symptoms should continue to be treated by a psychiatrist. In his opinion the combination of her age, physical disability, emotional disability, low education and literacy skills, and essentially no transferable skills makes it very unlikely that she would ever again be employable in the competitive labour market.

Dr. Pieter O. G. Butler, psychiatrist assessed Mrs. Bogojevski at the request of her counsel in June 1998 and in January 1999. In his opinion, Mrs. Bogojevski has a depressive disorder with anxiety secondary to a general medical condition 293.83 DSM-IV. The general medical condition is soft tissue injuries to her neck, shoulder and back. In Dr. Butler's opinion, the pain from her injuries has led to her depression, which in turn intensifies her perception of the pain, leading to increased disability. Thus, her chronic pain, depression and her soft tissue injuries all interact to prevent her from working as she did pre-accident.

In his opinion, she is quite unable to work, and the quality of her life has been drastically affected as a person, as a worker, and as a wife and mother. Dr. Butler rated Mrs. Bogojevski's global assessment of function at 40, indicating serious symptoms, suicidal ideas and an inability to function at work or at home. Dr. Butler assessed Mrs. Bogojevski on two occasions: once on June 11, 1998 and then on January 12, 1999. He found no improvement in her condition between his assessments, although seven months had elapsed. In his opinion, Mrs. Bogojevski will continue to suffer as she has for the foreseeable future.

Dr. Cheung, Mrs. Bogojevski's family physician, has seen her on a frequent basis since this motor vehicle accident. In his opinion, she continues to suffer chronic myofascial pain syndrome which was caused by the August 1995 motor vehicle accident. Mrs. Bogojevski has constant pain, made worse by even minor activities, prolonged static postures, and cold weather.

Her overall pain level is rated at 8/10 in her neck, shoulders, arms, chest and abdominal walls, and legs. She has been investigated and treated by physical medicine and rehabilitation specialists, psychiatrists for anxiety and depression, and has received various treatment modalities. She requires non-steroidal anti-inflammatories and analgesics on an on-and-off basis. Her trapezius muscles on the right side have atrophied due to lack of use, and her shoulder droops. In Doctor Cheung's opinion, Mrs. Bogojevski has been very compliant and wants her health practitioners to get her better. Nevertheless, she has been on a downward course. He continues to see her on almost a weekly basis. Mrs. Bogojevski is very pessimistic about her future. In his opinion, Mrs. Bogojevski is unable to do her job because of pain, lack of mobility, inability to carry on any task for any reasonable length of time and depression. Dr. Cheung concludes that Mrs. Bogojevski is essentially totally disabled and unemployable.

Mrs. Bogojevski testified she experiences difficulty doing even her homemaking chores, and would therefore be unable to meet the requirements of an employer. She believes that at her age, without much education, it would be difficult to get another job. In any event, she feels that she has lost her health and would be unable to work.

Nada Bogojevski, the Applicant's daughter, presently 34, lives at home with her parents and works for a marketing and publishing company. She testified that initially her mother complained of pain in her neck and shoulders which just seemed to spread to other parts of her body: her chest, shoulder, right arm and right rib cage area. Her right shoulder has sloped noticeably, and her right hip seems to be higher. Nada testified her mother finds it uncomfortable to sit or stand for long periods. She feels fatigued, is unable to sleep at night and is really depressed that she has not been able to improve her condition since 1995. She feels that bad luck follows her around everywhere, and is frustrated.

Nada testified that after the August 31, 1995 motor vehicle accident, her mother cried a lot. Now she does not cry as much but is very short-tempered and "snappy," unlike before this accident. She has a very short attention span, poor memory and concentration. Nada and other family members have taken on homemaking chores which her mother once performed. Nada testified she and her mother seldom do things together anymore. Nada testified that following the August 1995 accident her mother complains about her pain every day.

The Insurer's evidence

In April 1996, Mrs. Bogojevski was assessed by Dr. J. Mah, orthopaedic surgeon at the request of State Farm. In his opinion, she had multiple complaints, such as pain in her wrists and fatigue, which are independent of the sites involved at the time of the motor vehicle accident.

In September 1996, Dr. E. P. Urovitz, orthopaedic surgeon and Dr. J. A. Nathanson, chiropractor, conducted a disability DAC assessment on Mrs. Bogojevski. Dr. Nathanson conducted a functional abilities assessment and concluded that Mrs. Bogojevski gave sub-maximal effort in muscle testing. Based on a 1.5 hour assessment, he concluded that Mrs. Bogojevski could perform her job. Dr. Urovitz opined there was no significant biomechanical or structural damage to Mrs. Bogojevski's neck and back from this accident. He could find no objective basis for her complaints, and, because she had positive Waddell signs, he concluded that her problem was not physical, but psychological, and outside of his area of expertise. Neither placed much weight on Mrs. Bogojevski's complaints about her limited tolerances for standing and other activities.

In December 1998, Dr. J. T. Van Schoor, family physician, conducted a Work Capacity Evaluation of Mrs. Bogojevski at State Farm's request. He was of the opinion that she had reached maximum medical recovery and there was no organic pathology related to the August 1995 motor vehicle accident which would interfere with her physical ability to work as a meat packer, or perform her activities of daily living. He reported that while subjective reports of pain may last longer, tissues heal after a period of 4 to 12 weeks.

In December 1998, Dr. J. E. Siegel, psychologist, assessed Mrs. Bogojevski at State Farm's request. Dr. Siegel concluded that she had mild impairment in measures of attention scores and confrontation naming. Mrs. Bogojevski endorsed significant symptoms of depressive symptomatology. In Dr. Siegel's opinion these were exaggerated, relative to her behavioural presentation. On the state trait anxiety inventory, Mrs. Bogojevski endorsed significant symptoms of internal restlessness and agitation and an above average predisposition to perceive a wide range of situations as potentially dangerous and threatening. On the pain coping inventory, her perception was that pain interferes with her ability to carry out many activities of daily living.

In Dr. Siegel's opinion, Mrs. Bogojevski is psychologically and mentally capable of completing her activities of daily living, and of performing the essential tasks of her pre-accident occupation as a meat packer. She did not require psychological counselling regarding the motor vehicle accident. However, the real issue was not whether Mrs. Bogojevski needed psychological counselling regarding the motor vehicle accident, but whether she had a psychological condition which impaired her work function, and, if so, whether this was related to the August 1995 accident.

Applicant's evidence in reply

Dr. Cheung acknowledged that Mrs. Bogojevski's post-accident complaints of pain in her wrists, ankles, pelvis and hips were likely unrelated to the August 1995 accident. However, he disagreed with Dr. Mah's opinion that Mrs. Bogojevski's remaining musculoskeletal complaints were independent of and unrelated to the August 1995 motor vehicle accident. He agreed that her pre-accident and post accident problems may fairly well be interrelated. He agreed to some extent that Mrs. Bogojevski's pre-accident complaints of pain in her shoulder, neck, low back, right knee, and some chronic anxiety are a continuation of her pre-accident complaints; however, he was of the opinion that virtually all of her pre-existing problems had been exacerbated by the August 1995 motor vehicle accident. Mrs. Bogojevski had complained off and on about a bursitis problem with her right shoulder prior to the accident. However, her present right shoulder problem in his opinion, is largely due to the injury to her right trapezius muscle which she sustained in the motor vehicle accident. That muscle has atrophied and is now smaller and weak due to lack of use. As a result, her shoulder is drooping.

Dr. Cheung testified that the body works as a whole. One part can affect another, even though it is remote from the site of the injury. If a person has significant problems in one part of his or her body, and favours that part of the body, stress and strain is placed on another part, and sooner or later the other part will show the wear and tear.

Dr. Cheung testified that whenever he examined Mrs. Bogojevski, she showed impairment. He therefore disagreed with the opinions of Dr. Van Schoor and Dr. Urovitz, that she did not have objective signs of impairment. He testified that none of the reports prepared at the request of the insurer have changed his opinion with respect to the cause of or the nature of her disability. He noted that he had looked after this injury for Mrs. Bogojevski from the first day of the accident and feels that he knows both the patient and the case very well.

Dr. Ko testified that he first saw Mrs. Bogojevski on April 12, 1994, in relation to her pre-accident chronic pain, and last saw her on October 5, 1998. He found her to be a very motivated, cooperative and compliant patient. Yet, he found no long term improvement in her condition over three years post-accident and noted she had always rated her pain at a high level. He found no major changes in objective examination, and his observations were ongoing reports of chronic pain despite efforts with all sorts of treatment.

Dr. Ko noted the comments of a lack of objective signs of impairments made by the health practitioners who examined Mrs. Bogojevski on behalf of the Insurer. He testified that there is no good objective diagnostic tool for soft tissue injuries. However, the absence of an objective test did not mean that Mrs. Bogojevski does not have organic pathology. He reviewed the reports of Drs. Mah, Urovitz, Siegel, Nathanson, Van Schoor, Margulies and of the medical rehabilitation DAC. However, those opinions had not caused him to alter his opinion that Mrs. Bogojevski is disabled. He noted that he had the benefit of more than just one snapshot of her, unlike those examiners.

Dr. Doxey testified that Dr. Siegel had been his intern. He described Dr. Siegel's report as "full of inconsistencies," and of "talking out of both sides of his mouth." Dr. Doxey testified that based on his observations and assessment skills during the structured clinical interview, Dr. Siegel reported that Mrs. Bogojevski appeared to be mildly to moderately depressed, based on her affect. Dr. Siegel administered two tests designed to measure depression. Mrs. Bogojevski reported moderate to significant symptoms of depression on one test and significant symptoms of depression on the other. Although Mrs. Bogojevski's reports were consistent with Dr. Siegel's own observations and assessment, he concluded that her scores relating to depression appeared exaggerated relative to her behavioural presentation.

Dr. Doxey noted that although Mrs. Bogojevski passed all three tests designed to determine her veracity which Dr. Siegel administered, on one of the scales designed to measure depression, her elevated scores could suggest "a cry for help." Dr. Siegel noted that it could reflect a moderate tendency towards self-deprecation and consequently an exaggeration of emotional difficulties, or alternatively symptom magnification or conscious exaggeration. Dr. Doxey testified that despite the existence of the other possible explanations and in light of the fact that Mrs. Bogojevski passed three tests to determine if she was cheating, Dr. Siegel nevertheless chose the interpretation that placed Mrs. Bogojevski in the most unfavourable light. In Dr. Doxey's opinion, Dr. Siegel's interpretation was "somewhat biased."

Dr. Doxey noted that similarly, despite Dr. Siegel's own assessment that she was mildly to moderately depressed and her scores on the tests designed to measure depression, Dr. Siegel reported that Mrs. Bogojevski had no impairments, accident related or otherwise, and required no counselling. Yet, he went on to conclude that she had a "guarded prognosis." Dr. Doxey testified that this is not the sort of prognosis made in relation to a person who has no impairments. Dr. Doxey also questioned the fair mindedness of a psychologist who would fail to mention the diagnosis of chronic pain syndrome or a related diagnosis when Mrs. Bogojevski was unquestionably presenting with a chronic pain syndrome. Dr. Butler, a psychiatrist, who assessed Mrs. Bogojevski also disagreed with Dr. Siegel's opinion.

Analysis & Conclusion

Mrs. Bogojevski submits that she remains disabled as a result of physical and/or psychological sequelae of the August 31, 1995, accident and therefore entitled to income replacement benefits. To succeed, she must show that the motor vehicle accident caused or significantly or materially contributed to a substantial inability to perform the essential tasks of her employment. The motor vehicle accident need not be the sole cause of disability.

State Farm submitted that the damage to Mrs. Bogojevski's car was minimal. Her symptoms from the August 1995 accident were clearing well in September 1995 and she should have recovered from any injuries she sustained in the August 1995 accident.

On the question of the relationship between the damage to the vehicle and Mrs. Bogojevski's level of injury, Dr. Ko testified that he was reminded that when he was a resident, he had a patient who had a small bump done to her car in an accident, yet ended up becoming a quadriplegic as a result of that bump. He testified that additional factors which should be considered in this case were that Mrs. Bogojevski was stopped at the time of impact and was hit without warning. These factors translate into a prognosis for greater cervical trauma or soft tissue injury. Her pre-existing injuries also made her more vulnerable. He compared her to being like a "fragile egg" and the car accident to the "last straw that broke the camel's back." He noted that prior to the accident she was working and functional. In his opinion, Mrs. Bogojevski's low level of education and a low proficiency in English are risk factors for developing chronic pain.

Dr. Cheung acknowledged that although in September 1995 it initially seemed as if Mrs. Bogojevski was on her way to recovery from her injuries, the reality was that it simply did not happen. Dr. Ko testified that the natural history of tissue healing is often stated to be 12 weeks, but after three months, 60% of individuals recover; after six months, 70% of individuals recover; and after one year, 76% of individuals recover. By two years, the likelihood of recovery is minimal if not zero. Mrs. Bogojevski is one of the small percentage of individuals who has not recovered from her symptoms and chronic pain. Dr. Cheung agreed that Mrs. Bogojevski fell into this small category. I accept Dr. Ko's evidence and that of Dr. Cheung.

There is conflicting evidence as to whether Mrs. Bogojevski's pre-existing low back pain was aggravated by the August 1995 motor vehicle accident, or was low back pain which would have recurred even without the motor vehicle accident. State Farm also submits that many of Mrs. Bogojevski's sites of pain increased over time. Dr. Cheung, Mrs. Bogojevski's family physician initially noted her complaints of pain in her neck and upper back and referred her for physiotherapy in October 1995 with a diagnosis of musculo-ligament pains in her neck, upper dorsal spine, and shoulders. Mrs. Bogojevski first appears to have complained of low back pain in November and December 1995. The time gap suggests that her low back complaints would not be directly connected to the original injury. Dr. Cheung agreed that complaints from the motor vehicle accident should have surfaced by September 1995. However, he testified that a person with injured sites would compensate for those injuries by putting undue stress on other areas of the body which in turn become painful, and in this way her low back pain for example, could have been aggravated by her motor vehicle accident injuries. I accept Dr. Cheung's evidence on this point.

Dr. Doxey opined that Mrs. Bogojevski's increasing symptoms over time did not surprise him "because, over time, as an individual becomes more emotionally distressed and as a pain condition evolves into chronicity and becomes more entrenched, it invariably also becomes worse." He anticipated that someone going into a chronic pain condition with very significant psycho-emotional overtones would in time have more widespread pain and additional complaints. I accept Dr. Doxey's opinions with respect to the increase in Mrs. Bogojevski's emotional symptoms and pain. In my view, the explanations offered by Drs. Cheung and Doxey are plausible and likely co-exist in this case.

Prior to the accident Mrs. Bogojevski complained of sleep difficulties due to her chronic back pain. Post-accident she was diagnosed with a significant sleep disorder. Based on the evidence, I am unable to determine whether her pre-accident sleep difficulties resolved prior to the accident, remained the same, or whether her post-accident sleep disorder was caused by the motor vehicle accident or was an exacerbation of her earlier difficulties.

Mrs. Bogojevski concurs with Dr. Ko's assessment and submits that this accident was the proverbial "straw which broke the camel's back." Mrs. Bogojevski's persistence in working in a cold environment before this accident, given the aggravation of her musculoskeletal complaints by cold since at least 1992, is in my view, strong evidence that she would likely have continued to work were she capable of doing so. I accept Nada Bogojevski's testimony that the letter she wrote on her mother's behalf in October 1996, stating that her mother seldom missed a day off work was a reference to innocent absenteeism. I also accept that Mrs. Bogojevski's repeated statements during her testimony that she was working despite her pain, pre-accident, were to the same effect.

Various health practitioners reported that Mrs. Bogojevski indicated that her recovery from many of her pre-accident injuries was uneventful. If those reports are accurate; such statements are not supported by the clinical notes and records of her family physician. However, I have considered Mrs. Bogojevski's modest intellectual abilities, lack of sophistication, limited facility in English, the nuances which can be lost when statements are filtered through a translator and the fact that for her the acid test was her ability to return to work following each of her injuries. Absent evidence from the physicians as to the specific questions asked and the answers given, I do not find that Mrs. Bogojevski concealed her pre-accident history. I am not persuaded that the surveillance impugns Mrs. Bogojevski's credibility. On most of the days over which surveillance she was inactive. On two of the days she walked briskly within the walking tolerance she reported to Dr. Urovitz in September 1996. Walking is part of her daily exercise routine prescribed by Dr. Ko. Her job required her to walk for 0.25 hours per day. I find walking is a limited aspect of her job as a meat packer.

Generally, I prefer the evidence of Mrs. Bogojevski's health practitioners, most of whom have seen Mrs. Bogojevski frequently and over time. Their explanations for her problems seem to correlate well with her actual history. I find they have provided a realistic assessment of the Applicant's pre and post-accident difficulties. In particular, I prefer the evidence of Drs. Cheung, Ko, Kachooie, Doxey and Butler to that of Drs. Urovitz, Nathanson, Mah Margulies and Siegel. The Applicant's witnesses have persuaded me on a balance of probabilities that the injuries she sustained in the motor vehicle accident in August 1995 significantly contributed to her physical and emotional disability. I find that the Applicant is physically unable to perform her job because of chronic myofascial pain in her neck, shoulders and upper body. Her job requires her to make frequent upper body motions. Mrs. Bogojevski is also unable to stand for six or seven hours as required by her job. I also find that the pain from her injuries has led to her depression, which in turn intensifies her perception of the pain, leading to increased disability. Thus, her chronic pain, depression and her soft tissue injuries all interact to prevent her from working as she did pre-accident. I accept the evidence of Dr. Digby and Dr. Kachooie that the most important contributing factor to Mrs. Bogojevski's ongoing disability is the August 1995 motor vehicle accident. In my view, the presence of her pre-existing problems does not eliminate the motor vehicle accident as a material contribution to Mrs. Bogojevski's disability.

For these reasons, and for the reasons given by Director's Delegate Draper in the cases of Zehr and Canadian General Insurance Group, (FSCO P99-00010, June 11, 1999) and Gray and Zurich Insurance Company, (FSCO P98-00047, June 11, 1999), I conclude that the Applicant is entitled to income replacement benefits between October 4, 1996 and such time as State Farm discharges its obligations with respect to the loss of earning capacity benefit provisions under the Schedule.

Entitlement to medical and rehabilitation expenses

Mrs. Bogojevski claims $51.74 for the cost of a heating pad, $290 for shiatsu and acupressure, $210 for massage and acupressure, $304 for aquafit classes, and $1,746.84 for transportation to various medical appointments. She withdrew her claim for massage therapy in the amount of $210 for submission to a collateral insurer. Mrs. Bogojevski submits that these expenses were reasonable, necessary and required as a result of the accident. State Farm does not dispute that Mrs. Bogojevski incurred the expenses, or the amounts claimed. However, it submits the treatments were not required as a result of the accident. Alternatively, State Farm submits the treatments were not reasonable because they were passive and have failed to provide her with long-term pain relief or improve her condition.

Section 36 of the Schedule provides that if an insured person sustains an impairment as a result of an accident, the insurer shall pay for all reasonable expenses incurred by or on behalf of the insured person as a result of the accident.

For the reasons set out above, I have concluded that Mrs. Bogojevski sustained impairments as a result of the accident of August 31, 1995 to her neck, upper back and right trapezius or top of her shoulder. I also accepted that many of her other complaints, in particular her low back were exacerbated by the accident, and that she suffers from depression and chronic pain syndrome as a result of the accident. Under section 36 of the Schedule the Insurer is obliged to pay for all reasonable expenses incurred as a result of the accident. Some of the treatments, such as the aquafit, are of benefit to her entire body. The dispute is therefore whether these expenses are reasonable in addressing those impairments.

Mrs. Bogojevski has tried a wide range of therapies, aimed at improving her function and providing pain relief; however she experienced only short term relief. Her treatment has included anti-depressants, anti-inflarnrriatories, painkillers, sedatives, cortisone injections acupuncture, acupressure, active and passive physiotherapy, hydrotherapy, vitamins, homeopathic preparations, occupational therapy, psychotherapy, pain counselling, and referrals to various specialists. She has been compliant; however, her condition has not improved on a long-term basis.

Mrs. Bogojevski testified that she performs a daily home exercise and stretching routine and soaks in a hot tub with salt at home. Her husband also provides her with massages. She testified that she continued to go for various treatments which her health practitioners recommended because she hoped to get better. I find Mrs. Bogojevski's approach was reasonable.

On the one hand, the opinion evidence adduced from the Insurer's examiners, and the medical and rehabilitation DAC assessors, is to the effect that the long-term relief is simply not there, she has had an adequate trial of various modalities and further treatments are neither reasonable nor necessary. On the other hand, Mrs. Bogojevski's health practitioners are supportive of treatment modalities which provide her with even short-term relief, as a humane approach to addressing her pain. I prefer the approach of the Applicant's health practitioners. Dr. Ko testified that his approach to treating Mrs. Bogojevski was that if a treatment did not yield results after a reasonable trial, he would recommend a change of either the therapist or in the type of treatment. I find Dr. Ko's approach reasonable.

Arbitrators have noted that decisions about whether or not treatment is reasonable are made before the expense is incurred. Results, if any, are not known until after the treatment has been provided. Thus the reasonableness of treatment ought not to be judged with the benefit of hindsight.

State Farm submits that such treatments are passive and are inappropriate at this point post-accident. At least two components of Mrs. Bogojevski's treatment are active: her twice a week aquafit program, and her daily home exercise and fitness program. In this context I find passive measures which provide her with short-term relief from pain reasonable.

Mrs. Bogojevski testified that Dr. Kachooie recommended the heating pad for use on an as-needed-basis. She applies it to her neck, back and low back and finds it helpful in relieving her pain. Dr. Cheung also recommended a heating pad. I find the heating pad a reasonable measure for pain relief, the cost modest, and therefore reasonable.

Dr. Kachooie agreed that Mrs. Bogojevski could do exercises in the pool on her own and that she did not need to participate in aquafit classes. However, Mrs. Bogojevski's testimony on this point, which I accept, has persuaded me that this is not feasible. My impression from her testimony - both what she said and from her demeanour, was that she becomes scared in the pool. She testified that she does not swim and has to go in deeper water to get her shoulders under the water to perform some of the exercises. At times her breathing becomes heavy and "something sort of stops me." She testified that she has her husband watching her when she is in the pool, and, with the classes, a support in the instructor. The lifeguard provides her with an additional safety net.

Mrs. Bogojevski testified that after aquafit, she feels better, her muscles feel more rested and she sleeps better at night. It benefits her entire spine. If she does not do aquafit, she feels pain in her right leg and hips. Mrs. Bogojevski testified that she feels aquafit assists her in dealing with accident related problems. She received acupressure for pain in the top of her shoulders and neck, and between the rib cage and the back of her neck. Shiatsu is also applied from her low back to top of the spine, including the back of her neck. It incidentally assists her in dealing with problems such as her sleep disorder which I cannot attribute to the accident. I find that where the primary reason for recommending treatment is to address an impairment which results from the accident, such incidental benefit does not relieve the Insurer of the obligation to pay for the treatment, or for transportation to the treatment.

For these reasons, I also conclude that the Applicant is entitled to all of the supplementary medical expenses which she claimed in the amount of $2,392.58.

Interest:

Mrs. Bogojevski is entitled to interest on overdue benefits pursuant to section 68 of the Schedule.

Expenses:

If the parties are unable to agree on the question of expenses, they should contact the case administrator to arrange for a resumption of the hearing for submissions on expenses.

February 15, 2001

Suesan Alves Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 21

FSCO A97-001568

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

STOJNA BOGOJEVSKI

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:

1. State Farm Mutual Automobile Insurance Company shall pay Mrs. Bogojevski income replacement benefits at the agreed upon rate of $456.58 per week from October 4, 1996 until such time as State Farm discharges its obligations in respect of the loss of earning capacity provisions under the Schedule.

2. State Farm Mutual Automobile Insurance Company shall pay Mrs. Bogojevski $2,392.58 for the cost of a heating pad, aquafit, transportation to treatment, and treatments for shiatsu, acupressure and massage as supplementary medical expenses under section 36 of the Schedule.

3. State Farm Mutual Automobile Insurance Company shall pay Mrs. Bogojevski interest on overdue benefits.

4. If the parties are unable to agree on expenses, that issue may now be addressed.

February 15, 2001

Suesan Alves Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
2. 2In this case there were a number of missing records: some of Dr. Cheung's clinical notes and records were lost in the course of an office move; those of Dr. J. Nathanson, chiropractor, who conducted part of a disability DAC assessment were lost in a flooded basement; Dr. J. Y. Mah, orthopaedic surgeon who conducted an insurer's examination advised he was unable to locate his clinical notes; the attendance records of Quality Meat Packers were summonsed but were not produced in their entirety, despite Mr. Rauth's efforts to confirm with human resources that he had the entire record. I am satisfied that these documents were relevant, that both parties made efforts to obtain these documents, and that this is not a case in which either party sought to conceal unfavourable evidence. I do not draw an adverse inference with respect to the absence of any such records.