Neutral Citation: 2001 ONFSCDRS 26

FSCO A99-000392

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

KAREN J. KRUSTO

Applicant

and

GENERAL ACCIDENT ASSURANCE CO. OF CANADA

Insurer

REASONS FOR DECISION

Before: Shari Novick

Heard: April 10, 11, 12, 13, August 8, 9 and 10, 2000 at the Offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on September 20, October 13 and October 20, 2000.

Appearances: J. Patrick Brown for Ms. Krusto Colin S. Jackson for General Accident Assurance Co. of Canada

Issues:

The Applicant, Karen J. Krusto, was injured in a motor vehicle accident on February 24, 1996. She applied for and received statutory accident benefits from General Accident Assurance Company of Canada ("General Accident"), payable under the Schedule.¹ General Accident terminated weekly income replacement benefits on May 23, 1997, although the Applicant had returned to work approximately six months earlier on a part-time basis. The parties were unable to resolve their disputes through mediation, and Ms. Krusto applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Krusto entitled to receive weekly income replacement benefits beyond May 23, 1997, pursuant to section 7 of the Schedule?

2. Is Ms. Krusto entitled to supplementary medical and rehabilitation benefits for physiotherapy and various other treatments and services outlined in a rehabilitation consultant's report filed, pursuant to sections 36 and 40 of the Schedule?

3. Is Ms. Krusto entitled to a special award under subsection 282(10) of the Insurance Act on the grounds that General Accident unreasonably withheld or delayed benefits?

4. Is General Accident entitled to a repayment of benefits paid to Ms. Krusto between November 20, 1996 and May 23, 1997, pursuant to section 70 of the Schedule?

5. Are either General Accident or Ms. Krusto entitled to payment of their expenses for the arbitration?

Result:

1. Ms. Krusto is entitled to weekly income replacement benefits, with interest, from May 23, 1997 and onward, pending a Loss of Earning Capacity offer from General Accident pursuant to section 21 of the Schedule.

2. Ms. Krusto is entitled to the following supplementary medical and rehabilitation benefits as detailed in Joan Lee's report:

(a) medication expenses;

(b) gym membership;

(c) four sessions with a kinesiologist;

(d) psychological treatment; and

(e) vocational assessment and counselling.

3. General Accident is not liable to pay a special award.

4. General Accident is not entitled to a repayment of any benefits it paid to Ms. Krusto between November 1996 and May 1997.

5. The parties may now address the issue of expenses.

EVIDENCE AND ANALYSIS:

Background:

Karen Krusto was injured when the vehicle she was driving collided with another vehicle that cut in front of hers to make a sudden right turn. She was taken by ambulance to Credit Valley Hospital where x-rays of her cervical spine and chest were taken. The x-rays showed no fractures and she was released from hospital with a prescription for pain medication. She consulted a general practitioner near her home in Mississauga a few days later, and complained of pain in her left shoulder, neck pain that radiated down her arms, low back pain that radiated to her legs and frequent headaches. She was diagnosed with muscle strain of her cervical and lumbar spine, and left shoulder. The accident also caused bruising to her chest and hip area.

Ms. Krusto was employed by St. Elizabeth Health Care as a community mental health nurse at the time of the accident. She worked part time, averaging 22 hours per week. General Accident paid her income replacement benefits ("IRBs") at the rate of $307.91 from one week after the accident until May 23, 1997. As mentioned above, Ms. Krusto returned to work, at reduced hours, on November 20, 1996.

Ms. Krusto's return to work was coordinated by Work Return Inc., case managers appointed by General Accident. Detailed evidence was presented regarding the events leading up to her return to work, the graduated return-to-work program that was arranged, and whether or not it was implemented properly. The relevant parts of this evidence will be outlined below. Ms. Krusto's return to work did not proceed smoothly, and while the parties have different views of the reasons for this and whether or not it ultimately led to her resignation from St. Elizabeth, it is agreed that her employment there ceased in late October 1997.

General Accident takes the position that Ms. Krusto no longer suffered from any impairment when her benefits were terminated in May 1997. Alternatively, it contends that any residual physical symptoms that affected her ability to work after that date resulted from a prior car accident she was involved in while living in Florida in August 1989. Ms. Krusto suffered soft tissue injuries to her neck and back as a result of that accident, and was off work for over one year. She also suffered from depression in the aftermath of that accident. The Insurer contends that if Ms. Krusto is found to be suffering from a psychological impairment that prevents her from performing the essential tasks of her pre-accident employment, it is due to pre-existing psychological difficulties and is unrelated to the accident in question.

Essential tasks of Applicant's pre-accident employment:

Ms. Krusto became a registered nurse in Ontario in 1983. Since that time and prior to beginning her job at St. Elizabeth Health Care she worked as a nurse in psychiatric wards of different hospitals, including the Clarke Institute in Toronto and various hospitals in the United States. She was hired as a "visiting nurse" with St. Elizabeth in early February 1995, approximately one year prior to the accident. I find that this position was in the field of community nursing, and differed from the hospital work that she had done previously. I also accept Ms. Krusto's explaination that full-time nursing jobs were difficult to find at that time, and that she was consequently prepared to accept part-time hours. She kept detailed records of all of the hours she worked for St. Elizabeth, which indicate that she averaged 22 hours per week in the year between her beginning her employment there and the car accident. This evidence was not contested either by the Insurer or her employer.

Ms. Krusto testified about the duties she performed as a visiting nurse. I find that her job required her to drive to patients' homes to assess their condition and manage their care from a mental health standpoint. She was assigned to the team that serviced the region known as "Metro West," covering the area bordered by Lake Ontario on the south and Finch Avenue on the north, with Highway 427 and Avenue Road being the western and eastern borders respectively. She stated that she was often required to visit patients living in boarding houses or Ontario housing developments in "tough areas," in which she would occasionally encounter violent gangs and drug-dealing activity.

I find that Ms. Krusto conducted assessments and provided case management services to clients in the community who were mentally ill. Her duties included administering medication, providing counselling and crisis intervention, and educating family members of her patients. She was required to liaise and consult with various doctors and community organizations. Ms. Krusto's job also involved a significant amount of administrative work, as she was required to report regularly to Home Care (the government funding agency for the services provided by St. Elizabeth), check telephone messages on an hourly basis and attend weekly team meetings.

I also find that Ms. Krusto treated patients suffering from a variety of conditions and disorders including those that were acutely psychotic with a history of harming themselves or others, paranoid schizophrenics, and those suffering from bipolar disorders, manic depression and obsessive compulsive disorders. Some patients were suicidal; others were potentially hostile or homicidal. Some had medical problems in addition to their psychological difficulties, and were confined to wheelchairs. In the course of managing a patient's care, Ms. Krusto was expected to address any acute problems that arose, such as patients not taking their medication and any consequences that resulted.

Ms. Krusto was also required to be "on-call" during one weekend every two or three months, during which time she might be called to deal with any emergency that arose in her practice area.

The Applicant described some of the physical requirements inherent in her job. I find that treating patients who were dispersed within a large, congested area meant that she spent most of her work hours driving in her car. She would often have to park some distance away and walk to the building where the patient was living, carrying a nursing bag. She would occasionally have to climb stairs. She explained that she occasionally had to crouch to apply a dressing, or lift or move a patient who needed to be catheterized.

I find that Ms. Krusto's work was demanding and stressful, and that it required her to be "on the ball." Frances Lesick, the human resources manager at St. Elizabeth, testified that the physical requirements of the mental health visiting nurse job were less strenuous than those faced by the visiting medical/surgical nurses, but agreed that any visiting nurse needed to be in good physical and mental condition as well as alert and "street smart." She went as far as to say that her nurses needed to be 100 percent physically and mentally able to perform their job, otherwise they could be sacrificing their safety or that of their patients. She acknowledged that there had been incidents in which nurses have been struck by patients under their care, explaining that the protocol to be followed upon encountering a violent patient is to try and de-escalate the situation if possible, and if not, to leave the situation quickly and call for help.

Ms. Krusto stated that she found her job to be both challenging and fulfilling. She was also enrolled in a certificate program at Humber College in the area of psychosocial rehabilitation in the community. She attended courses there two evenings each week, and had completed two of the six courses required to obtain the certificate prior to being involved in the accident. I accept this as evidence of her motivation to excel in the field in which she worked.

Disability:

Extensive evidence was called and several expert reports were filed addressing Ms. Krusto's level of disability from both a physical and psychological standpoint. As stated above, she suffered soft tissue injuries as a result of the accident and was paid income replacement benefits until May 1997. The evidence also indicates that Ms. Krusto experienced psychological difficulties in the aftermath of the accident. I will attempt to summarize the evidence as it relates to both the physical and psychological impairments alleged.

Ms. Krusto did not have a family doctor at the time of the accident in February 1996. She attended a walk-in clinic near her home a few days afterwards and consulted Dr. L.A. Small. The Health Practitioner's Certificate completed by Dr. Small in mid-March 1996 indicated that Ms. Krusto was suffering from pain in her left shoulder, shooting pain down both arms, neck pain and reduced range of movement, low back pain, hip pain and bruising on her upper chest and hip areas. Dr. Small referred her for daily physiotherapy and massage therapy.

Ms. Krusto began seeing Dr. Barbara Newton, a general practitioner, in mid-April 1996. She consulted Dr. Newton on a regular basis from that time until some time in mid-1997. Dr. Newton testified at the hearing, and her clinical notes and records were filed into evidence. Dr. Newton diagnosed Ms. Krusto as suffering from myofascial strain of the cervical spine and shoulders, mechanical low back pain, trocanter bursitis and headaches. She referred her to Dr. Daniel Selchen, a neurologist, to address her complaints of daily headaches.

Dr. Selchen's examination in late May 1996 revealed no significant neurological problems. He reported that Ms. Krusto was experiencing "a lot of soft tissue pain aggravated by a significant depression" which he suggested be treated aggressively with anti-depressant medication.

Ms. Krusto was also sent to Dr. R. Soric, a physiatrist, for an Insurer's Examination ("IE") in May 1996. Dr. Soric reported "definite clinical evidence of left-sided bicipital tendonitis, cervical and lumbar strain." She suggested that the Applicant continue to take the Amitriptyline that had been prescribed and pursue physical therapy.

In early August 1996, approximately six months after the accident, the physiotherapist treating Ms. Krusto noted that she reported reduced intensity and frequency of all of her symptoms. However, the clinic's records also note continued restricted flexion in both her cervical and lumbar areas. Dr. Newton's notes from a consult in mid-August 1996 are essentially consistent with these findings. They indicate some improvement in Ms. Krusto's condition, but note that she continued to experience neck pain and radiating low back pain.

Ms. Krusto attended another Insurer's Examination in August 1996 at AssessMed. She underwent a Functional Abilities Evaluation ("FAE") overseen by Dr. Paul Grant and was also assessed by a psychologist, Dr. Hemendrah Shah. Dr. Grant found no objective evidence of physical impairment and determined that Ms. Krusto was capable of performing most of her pre-accident activities. He stated, however, that she would likely experience some difficulty returning to work as a result of her physically-deconditioned state, and recommended six more weeks of active rehabilitation emphasizing stretching, strengthening and aerobic conditioning. Dr. Grant determined that Ms. Krusto met the physical demands of her job at that point, and opined that she would be able to return to work after completing the six-week rehab program.

Dr. Shah determined that there were no psychological barriers preventing Ms. Krusto from resuming all of her former activities. The results of testing he conducted led him to conclude that while Ms. Krusto did report some depressive symptomatology, she was likely not suffering from a Major Depressive Disorder as defined in the DSM IV.² Dr. Shah testified that Ms. Krusto had probably experienced post-traumatic stress as a result of the accident, but that her remaining problems were related to some unfortunate experiences in her life that predated the accident rather than the accident in question.

The notes filed from Columbia Rehabilitation Centre, where Ms. Krusto was receiving treatment, indicate that her therapy included a work-hardening or job simulation component throughout August and early September 1996. On September 6, 1996, the physiotherapist's recommendations included a note stating "initiate modified work ASAP with help of case manager," subject to the following restrictions: no overhead reaching with her left arm, no lifting over 40 pounds from floor to waist and "four hours per day in AM to start."

Dr. Newton's notes of a consultation with Ms. Krusto a few days later, however, reveal that Ms. Krusto did not feel that she was able to return to work yet. Dr. Newton noted that she was "psychologically doing poorly — depressed mood, sleeping poorly although on Paxil and Elavil-nightmares." Dr. Newton also recorded that Ms. Krusto had had suicidal thoughts. While the medical records from this date onward continue to record the Applicant's complaints of radiating low back pain and intermittent pain in her neck and shoulder, it appears that her psychological symptoms became the more prominent concern at this point.

General Accident retained the firm of Work Return Inc. in mid-September 1996 to coordinate Ms. Krusto's return to work. Kim Almas, a rehabilitation consultant, was assigned to the matter and subsequently met with Ms. Krusto and communicated with her employer at various points over the course of the next six months. She also corresponded with many of Ms. Krusto's health care providers. Ms. Almas prepared a Rehabilitation Plan dated October 3, 1996, which indicated that the goal was for Ms. Krusto to return to modified work. It included a recommendation that an orthopaedic consult take place, and that Ms. Krusto receive psychotherapy treatment. Dr. Newton signed the plan, under the statement: "there are no medical concerns to this client's active participation in this rehabilitation plan."

Dr. Newton's office arranged for Ms. Krusto to see Dr. David Simmonds, an orthopaedic surgeon, in late October 1996. Ms. Almas provided her first written report to Christine McMillan, the adjuster at General Accident, on October 18. She reported that while Dr. Newton did not feel it was necessary for Ms. Krusto to wait until she saw Dr. Simmonds before returning to work, the consult with Dr. Simmonds would reassure Ms. Krusto, who felt at that point that she had a physical problem that had not yet been detected. Ms. Almas indicated in the report that she agreed that the orthopaedic consult should be completed in order to rule out any possible physical findings and to provide Ms. Krusto with the peace of mind she seemed to need before attempting to return to work.

Despite receiving this advice, Ms. McMillan wrote to Ms. Krusto on October 24, one week prior to the scheduled appointment with Dr. Simmonds, accusing her of "resisting attempts to pursue a graduated return to work program as prescribed by your attending practitioners." The letter contains a paragraph in bold-faced type notifying her that the Insurer intended to reduce her weekly IRB by 50 percent "due to your failure to participate in treatment and rehabilitation as prescribed by your physician." It warned that if she continued to refuse "to comply with section 73(1) of the Schedule,"³ her benefits would be reduced in 30 days.

Ms. Lesick, the human resources manager at St. Elizabeth, wrote a letter to Ms. Almas in late October 1996 confirming that the physical restrictions set out for Ms. Krusto's return to work by her physiotherapist could be accommodated. Ms. Lesick also stated that "it is possible to provide graduated modified hours, volumes permitting, and eventually return Karen to her pre-injury capacity as a Visiting Mental Health Nurse." I note, however, that a report sent by Ms. Almas to the adjuster on the same day reveals that Ms. Lesick had advised that the hours that could be offered Ms. Krusto were likely to be unpredictable, and would "of course depend on the need for mental health nurses in the community at any given time."

As a part-time employee, Ms. Krusto was not guaranteed any specific hours of work but received "overflow" referrals within her designated area once the full-time nurses' schedules were full. Notwithstanding the uncertainty inherent in this system for part-time employees, Ms. Krusto had worked an average of approximately 22 hours per week in the year prior to the accident.

Dr. Simmonds' assessment on October 31, 1996 did not reveal any orthopaedic problems. He suggested that a bone scan be carried out, which ultimately yielded normal results. While this referral was initiated through Dr. Newton's office, Ms. Almas had written to Dr. Simmonds prior to the scheduled appointment and advised him that "all treating practitioners involved in Ms. Krusto's care are recommending she return to work gradually," and that Ms. Krusto had declined to do so. She also advised Dr. Simmonds to bill General Accident for the consult and to send his report to Ms. McMillan.

Dr. Simmonds followed these instructions. Despite having received a referral letter from Dr. Newton requesting his assessment of Ms. Krusto's spine and hip and his views on her need for further therapy, he sent a three-page report to the Insurer, outlining his findings and diagnosis and forwarded a very brief, two paragraph letter to Dr. Newton essentially recommending that Ms. Krusto undergo a bone scan. Ms. Krusto testified that she had expected her consult with Dr. Simmonds to be independent of her interactions with the Insurer, and that she had been quite frustrated and upset by the fact that General Accident had "interfered" with this referral from Dr. Newton.

It is clear that once Ms. Almas was retained, the pressure mounted on Ms. Krusto to return to work. Having received a recommendation from the physiotherapist at Columbia to initiate a return to work as well as opinions from the IE doctors that she was not substantially disabled, both Ms. Almas and the Insurer clearly held the view that Ms. Krusto had no sound basis for refusing to return to work. By October 1996, Dr. Newton also supported a gradual return to work, with the proviso that Ms. Krusto receive psychotherapy and continue her active physiotherapy treatment. Ms. Krusto testified that the concerns she voiced about her continuing symptoms were not heeded, and that as her pleas for funding of further treatment were being ignored, she felt that her only option was to "cut a deal" with the Insurer. She explained that she agreed to pursue the graduated return-to-work program in exchange for the Insurer's agreement to fund 10 sessions of chiropractic treatment.

Ms. Krusto began the graduated return-to-work program in mid-November 1996. The schedule worked out by Ms. Almas contemplated a gradual increase in the number of hours worked during three days per week, over the course of 12 weeks. Ms. Krusto was to work for two hours per day, three days per week for the first three weeks, after which she would increase her work hours to four hours per day for the following three weeks. The schedule contemplated that she would subsequently increase to six hours per day for three more weeks, and finally to eight hours on three days each week by late January 1997, approximating her pre-accident hours.

In late December 1996, in a letter to the Applicant's counsel, Dr. Newton confirmed her opinion that Ms. Krusto was capable of returning to work from a physical standpoint and that "the graduated work return is designed to gradually ease her into her previous job demands." She also stated that she was unable to speculate on the psychological issues related to the accident, as she had not known Ms. Krusto before the accident.

Dr. Newton's clinical notes reveal that Ms. Krusto telephoned her office on two or three occasions in late December and January 1997 to advise that she was not able to work because she was in pain. In late February 1997, approximately three months after Ms. Krusto had begun the graduated return-to-work program, Dr. Newton's note of their visit indicates that she was complaining about having difficulty carrying out her tasks at work, and concentrating on her work. Ms. Krusto also reported that the accident had set her back emotionally and that she was finding it hard to cope with constant, chronic pain. Dr. Newton reported that Ms. Krusto's emotional state was "very tenuous" at that time.

By all accounts, Ms. Krusto did not work the hours set out in the schedule. While she claimed to be restricted by both physical and psychological limitations, the evidence also indicates that she was not assigned the scheduled number of hours in any of the 12 weeks of the program. In 10 of the12 weeks she was assigned significantly fewer hours than were recommended. Instead of her hours increasing steadily, they varied widely from one week to the next but never amounted to more than 9.5 hours in one week. Those hours were worked during the second week of the program, and her work load steadily declined after that. In the last six weeks of the program she worked four hours, six hours and in one case only one hour per week instead of the projected 18 and 24 hours per week. The number of hours she worked continued to vary widely from week to week during February and March of 1997.

Ms. Almas testified that she spoke to Frances Lesick at St. Elizabeth to discuss why the graduated schedule of work hours was not being followed. She stated that Ms. Lesick had advised that the necessary hours were available for her, but that Ms. Krusto did not want to work. This evidence is inconsistent with that of Ms. Krusto. She testified that the hours she was offered did not increase in a steady way, as had been intended, and that she was not able to test her capabilities over time as was contemplated by the schedule. Ms. Krusto added that the nature of the work is such that there are generally fewer referrals in the winter months.

Ms. Lesick was then questioned directly on this point. She stated that the employer had not kept a record of the hours that Ms. Krusto had worked pursuant to the plan, but acknowledged that the team she worked with experienced fluctuating referrals depending on the season. She also confirmed that Ms. Krusto had complained about not being assigned enough hours, and recalled that her manager had suggested that she accept assignments in an adjacent area but that Ms. Krusto had indicated that she was not prepared to travel into another region.

In a final letter to Ms. Almas of Work Return on March 6, 1997, Dr. Newton advised that Ms. Krusto could be released to her pre-accident employment, with no physical limitations. She stated, however, that "she continues to be disabled by psychological limitations," repeating that as she had not known Ms. Krusto before the accident, she could not say whether these resulted from the accident.

Under cross-examination, Dr. Newton stated that she was aware that Ms. Krusto had worked as a visiting mental health nurse, but conceded that she had "no idea" what type of patients she saw nor what parts of the city she had to visit. She explained that she had relied on Ms. Almas, the rehabilitation consultant, to be aware of these details. She also stated that if she had known that some of the patients that Ms. Krusto had to treat were acutely psychotic or actively suicidal, she would have requested input from Dr. Nehra, a psychotherapist that Ms. Krusta had been seeing, regarding her psychological state. She agreed that the Applicant had exhibited symptoms suggestive of a depression, and that she had prescribed anti-depressant medication to her, explaining that the medication is also effective in the treatment of chronic pain when taken in low doses.

It is clear that the graduated return-to-work plan did not accomplish its goal. The hours offered to Ms. Krusto during the period in question did not follow any pattern and did not provide her with the opportunity to gradually build up her strength and tolerance, such that she could "ease into her previous job demands" as was contemplated by Dr. Newton. The evidence is replete with references to Ms. Krusto's complaints about being in pain during this period, and experiencing feelings of anxiety about returning to work. Ms. Lesick conceded that she was aware that Ms. Krusto was experiencing psychological difficulties when her return to work was discussed, but stated that she had not received any information from Ms. Almas about Ms. Krusto's psychological limitations. As she put it, we "were working within the framework of her physical limitations," and while she acknowledged that Ms. Krusto's mental state had been a "compounding factor" in the situation, she stated that it had not been the focus of the discussions that she had been involved in.

When all of the evidence regarding the efforts made to return Ms. Krusto to work is considered, a large gap emerges. Ms. Almas testified that her goal was to get Ms. Krusto back to work, and that she was responsible for coordinating the return-to-work plan. I find, however, that she ignored compelling facts that arose during the process, and that she did not effectively communicate Ms. Krusto's concerns to the others involved in the plan. She clearly formed the opinion early on in her dealings with Ms. Krusto that she was not motivated to return to work, and decided that her job was to push her to do so, despite her concerns.

An example of this is the manner in which Ms. Almas dealt with Ms. Krusto's psychological difficulties. She acknowledged in her testimony that she was aware that both Dr. Newton and Dr. Shah had recommended that Karen receive psychotherapy treatment while she pursued the graduated work plan. She stated, however, that she had not addressed this issue as her referral did not extend to dealing with psychological issues. It was not clear why Ms. Almas felt that her mandate was limited in this way. Her evidence suggested that this sentiment was based upon Dr. Newton's statement that while Ms. Krusto continued to be disabled by psychological limitations, she could not speculate whether or not these symptoms were caused by the accident because she had not known Ms. Krusto before the accident. Ms. Almas seemed to interpret this as an opinion that these limitations were unrelated to the accident. In any event, her decision to ignore this aspect of Ms. Krusto's recovery meant that no one at St. Elizabeth was aware of the problems being experienced by Ms. Krusto in this regard, and led them to conclude that she was merely being uncooperative and difficult.

As well, Ms. Almas did not have a real understanding of Ms. Krusto's job duties. She testified that she thought she performed in-home assessments of patients with "cognitive problems." It was clear that she had not discussed with Ms. Krusto either the type of patients she treated, or the exact nature of her duties. The result of not obtaining this crucial information was that not only was Ms. Almas in the dark about the duties Ms. Krusto had to perform, but Dr. Newton was also unaware of the exact nature of her job. Dr. Newton testified that she had relied on Ms. Almas to provide any relevant job-related details, and when advised during her testimony about the type of patients Ms. Krusto had to treat, she stated that if she had known she would have requested input from Dr. Nehra about the Applicant's psychological state during the discussions regarding her return to work.

The net result of all of this is that despite having a team of people involved in the plan to return Ms. Krusto to work, each of the principal players was lacking essential pieces of information. Dr. Newton "had no idea" about the type of patients Ms. Krusto went out to see, explaining that she had left those details to Ms. Almas to determine. Not only did Ms. Almas not have that information, but she relied on Dr. Newton's opinion that Ms. Krusto could return to work which, of course, was based on incomplete information. To make matters worse, Ms. Lesick, the only one who was aware of the exact nature of Ms. Krusto's job, was not advised about the psychological difficulties she was experiencing, because Ms. Almas had decided that they were not related to the accident and in any event, felt that this was not part of her mandate. For these reasons, the return-to-work plan failed.

Ms. Almas closed her file in mid-March 1997, after receiving Dr. Newton's opinion that Ms. Krusto could be released to her pre-accident duties. At that point in time, Ms. Krusto had not worked more than 14 hours in any one week. Ms. Almas notes in her final report to Ms. McMillan that Ms. Krusto "still disagrees with the release feeling that her psychological problems are too overwhelming to cope with driving, dealing with mental health patients or working three days per week."

Ms. Krusto attended a multidisciplinary disability assessment at a Designated Assessment Centre ("DAC") in late May 1997. She underwent a medical examination, a Functional Abilities Evaluation and a psychological assessment at the Health Recovery Clinic in Mississauga. Dr. S. Dharamshi, a physician practising in the rehabilitation area, noted some tenderness in Ms. Krusto's cervical spine, shoulder and sacroiliac joints of her lumbar spine but found that she was able to achieve a normal range of motion in all areas. He reported no evidence of significant physical impairment and determined that she was not substantially disabled from the essential tasks of her occupation. The FAE assessors determined that Ms. Krusto was not functionally restricted from performing any of the assessed tasks and that she met the required physical demands of her job.

Dr. Cheryl Gillin-Garling, a psychologist, interviewed Ms. Krusto as part of the DAC process and conducted some personality tests. Her report states that the results "suggest the likelihood of somatoform features (emotional stress unconsciously "converted" into physical complaints) possibly accompanied by some depression and/or anxiety." She provided the opinion that Ms. Krusto was not substantially psychologically disabled as a result of the accident, and stated that:

While she may be experiencing some depression ... it is not of sufficient severity to be debilitating. Nor is it at all clear that it occurred as a result of the accident, since she was already in treatment when the accident occurred.

She added that Ms. Krusto's presentation was consistent with "long-standing problems."

When asked if she considered Ms. Krusto to have been in "good mental condition" at the time of her assessment, Dr. Gillin-Garling responded that she would have described her condition as "fair." She noted that Ms. Krusto had told her that when she had stopped taking her anti-depression medication she had felt "really bad" and felt like harming or killing herself. When asked about her familiarity with Ms. Krusto's job duties, Dr. Gillin-Garling responded that she was aware that she worked as a mental health nurse and that she had read the job description from St. Elizabeth. She admitted, however, that she had not discussed the details of Ms. Krusto's job with her during the assessment, and it was clear from the answers she provided that she was not aware of the type of patients Ms. Krusto treated or of the volatile situations she might encounter during her travels through her assigned area.

Finally, Dr. Gillin-Garling acknowledged under cross-examination that while Ms. Krusto had a pre-existing psychological condition and that background factors predisposed her to depression, the accident would probably have aggravated her condition.

Ms. Krusto's income replacement benefits were terminated after the DAC report was received in late May 1997. She testified that her hours of work increased significantly after that. Ms. Krusto explained that she was very worried about not being able to make the monthly payments that were due on her condominium and the car that she had purchased before the accident. She also explained that another nurse had left the mental health team at St. Elizabeth at that point, resulting in more referrals being available for her. Finally, she noted that as summer approached, the number of patients requiring care generally increased.

Ms. Krusto testified that her life at that point became a "living hell," stating that she found it extremely difficult to cope with the physical symptoms she continued to experience as well as the mental strain of work. She stated that she felt very depressed, was often anxious while driving around the city on referrals and recalled feeling suicidal at times. She continued to take anti-depressant medication, but was building up her tolerance to it so that its effectiveness was reduced. She recalled sobbing while driving around in her car and wondering how she could effectively treat patients who were mentally unstable, feeling the way she did. Her records indicate that she worked an average of 24 hours per week during the period of May to October 1997.

Ms. Krusto explained that at some point in August 1997 she reached a point where she could not tolerate working any more hours, and put herself on the "full" list at work. She stated that this signalled that she was no longer available to accept any new referrals. She testified that this had angered her supervisor, and it appears that this precipitated a deterioration in their relationship and ultimately, her resignation from St. Elizabeth in October 1997.

The Insurer produced a letter Ms. Krusto had written to her supervisor in October 1997, before her resignation, in which she advised that she had been offered another job and requested that a letter of reference be provided to her prospective employer. When asked to provide the background to this request, Ms. Krusto testified that she had been offered a part-time position with the sexual assault team at the Orillia Hospital, pending an appropriate reference, and that she had also been offered a short-term bedside nursing assignment in a hospital in Fort Lauderdale. She stated that the Orillia Hospital offer was rescinded when the reference from St Elizabeth was received.

Ms. Krusto then sold her condominium and moved to Orillia in December 1997, where her mother and brother both live. She began seeing Dr. Howard Wu, a family doctor there, in January 1998 and regularly thereafter. Dr. Wu's clinical notes and records were filed into evidence, and he was called to testify on behalf of the Applicant. He noted Ms. Krusto's complaints of headaches, neck pain radiating into her shoulder and back pain during their initial consultation. He also noted that she exhibited symptoms of a major depression, including loss of concentration. His examination revealed tenderness around her occiput joint and decreased range of movement in her neck and back, as well as trigger point tenderness in her cervical spine. Dr. Wu's clinical notes for a visit three months later indicate that Ms. Krusto was experiencing neck spasms and was "in pain all over."

Dr. Wu also provided a written report dated March 22, 2000 at the request of counsel for the Applicant, detailing his examination of Ms. Krusto in December 1999. He diagnosed her as suffering from a chronic cervical and lumbar spine injury, possible rotator cuff syndrome of the left shoulder, right upper extremity pain, cervicogenic or post-traumatic headaches and pain disorders associated with a medical condition and psychological factors. He opined that she was suffering from a major depression and possible post-traumatic stress disorder. His prognosis for her recovery was "fair to poor." He stated that he did not think Ms. Krusto could return to her previous work as a visiting mental health nurse, given the demanding nature of the patients she had to treat. Dr. Wu specified that the pain medication she was taking would likely cloud her judgment and that she would be unable to concentrate in the manner required.

Dr. Wu testified that he prescribed various pain medications to Ms. Krusto over the course of his treatment of her, as well as Effexor, an anti-depressant.

Under cross-examination, Dr. Wu acknowledged that he had not obtained Ms. Krusto's chart or any information from her previous family doctor, and that he had relied exclusively on her self-report of her prior medical history in arriving at his opinions.

Dr. Wu's records also contain a copy of a letter he wrote in support of Ms. Krusto's application for a part-time job in February 1998. When questioned about this, he stated that she had advised him that she was prepared to attempt to return to work on a part-time basis, and that while they had not discussed the exact nature of the duties she would be performing, he felt that she would be capable of working 20 hours per week if she was motivated to do so, provided that she would be able to take regular breaks.

In fact, Ms. Krusto did not work again until late December 1998, one year after moving up to Orillia, and 14 months after she resigned from her job at St. Elizabeth. She explained that she took a job as a "casual" employee at a retirement home, as a nurse supervisor. The evidence indicates that she worked approximately 35 days over the course of the next nine months, caring for patients on her unit and assisting RPNs on other units.

In September and October 1999 Ms. Krusto went to Maine, where she worked as a nurse in a mental health institute for eight weeks. She explained that she had decided to go back to accepting travelling assignments in the United States because she knew that she could make more money there, and that she had hoped to be able to fix up her house so that she could operate it as a bed-and-breakfast. She stated that the job in Maine was not very demanding, and that she mainly supervised other staff and did charting and assessments.

Ms. Krusto subsequently went to Rochester, New York in January 2000 and worked for several weeks as a bedside nurse in a psychiatric unit at a hospital. She testified that she found this assignment to be both physically and mentally demanding and that it made her realize that something was really wrong with her and that she needed further care.

Dr. Wendy Chan, a psychologist, assessed Ms. Krusto in April 2000, just prior to the start of the hearing. She reported that her test results revealed a severe level of depression and diagnosed Ms. Krusto as suffering from a Major Depressive Disorder in Partial Remission. She explained that "partial remission" referred to the fact that some symptoms of a major depressive episode are still present, but that the full criteria are no longer met. She noted that Ms. Krusto's depressive symptoms were controlled to some extent by the anti-depressant medication prescribed by Dr. Wu.

Dr. Chan's opinion regarding the cause of Ms. Krusto's condition and her level of disability differed from that of the other psychologists, Dr. Shah and Dr. Gillin-Garling. She found that her depression had developed as a result of the changes to her life caused by the accident, referring specifically to her pain, reduced capabilities and reduced stamina. She stated as follows:

Despite her history of depression and adjustment difficulties, she was functioning adequately for some time prior to the car accident, and was in fact gainfully employed and pursuing her education....In my opinion, the emotional trauma of the car accident presents as the last of a series of stresses in her life, which has served to overtax her usual reserve of strengths, inner resources and coping capacity to the point that she is reportedly unable to emerge from her current difficulties by her own unaided efforts.

Dr. Chan reported that the prognosis for Ms. Krusto's recovery was poor in "terms of a return to prior emotional and functional status." She also stated that:

...in my opinion, Ms. Krusto has developed serious functional impairment from a psychological standpoint as a result of the February 1996 motor vehicle accident. As such, her ability to return to work is significantly compromised; specifically, it is my opinion that she is substantially disabled from returning to her former type of employment in community nursing on a consistent basis without intermittent breaks.

Ms. Krusto was subsequently reassessed by Dr. Shah at AssessMed at the request of the Insurer in May 2000. His report of that visit notes that Ms. Krusto's depression had much improved since 1996 when he had last seen her, although he noted that the testing still revealed a moderate level of depression. Dr. Shah acknowledged that Ms. Krusto continued to experience psychological difficulties, but maintained the opinion that she was not psychologically disabled from performing the essential tasks of her employment or activities of daily living.

It was clear, however, that Dr. Shah was not fully aware of the details or circumstances of Ms. Krusto's job. When he was advised during his cross-examination of the type of patients she was required to treat, he agreed that it would be necessary to be in "good psychological condition" in order to perform her job. Once made aware of the type of patients that the visiting mental health nurses treated on a regular basis, Dr. Shah changed his opinion and stated that Ms. Krusto would likely have been substantially disabled from performing the essential tasks of her employment.

Dr. Shah disagreed with Dr. Chan's findings that Ms. Krusto's psychological difficulties were attributable to the 1996 accident, stating that many of the instruments used by Dr. Chan to evaluate her condition are merely self-reporting descriptions of perceived difficulties that cannot be tested for validity. When questioned about the role that her earlier difficulties played in her current condition, Dr. Shah explained that Ms. Krusto had never come to terms with these life experiences and that the accident had "brought them to the surface."

Findings on entitlement:

In order to qualify for income replacement benefits beyond May 1997, Ms. Krusto must prove on a balance of probabilities that she sustained an impairment as a result of the February 1996 accident which caused her to continue to be substantially unable to perform the essential tasks of her pre-accident employment. The majority of the medical evidence tendered at the hearing supports the view that while Ms. Krusto may have continued to experience some pain and stiffness in her spine and shoulders in May 1997, she was nonetheless physically able to perform most of the tasks associated with her job as a visiting mental health nurse.

The discussion does not end there, however. As indicated above, Ms. Krusto also experienced psychological difficulties after the accident, and the evidence suggests that there was an overlap or interplay between her physical and psychological symptoms. Dr. Selchen, the neurologist, first reported a few months after the accident that her soft tissue pain was aggravated by a significant depression. Dr. Newton noted that Ms. Krusto exhibited depressive symptomatology at several points during the time she was under her care. Dr. Gillin-Garling, the psychologist on the DAC team, testified that the test results obtained from her assessment of Ms. Krusto indicated that she converted her emotional stress into physical complaints.

Having considered all of the evidence related to Ms. Krusto's psychological condition, I am persuaded that she continued to be substantially disabled from performing the essential tasks of her employment after May of 1997, when her benefits were terminated. Dr. Chan provided this opinion, and Dr. Shah adopted this view during the course of providing his evidence, after being advised of the type of patients that she was required to treat. While Dr. Gillin-Garling felt that Ms. Krusto was not substantially disabled from a psychological standpoint as a result of the accident, I do not accept her opinion. Despite the fact that she had determined that Ms. Krusto was experiencing some depression at the time of her assessment, Dr. Gillin-Garling concluded that it was not severe enough to be debilitating. However, she did not provide any basis for making this statement, and her analysis makes no reference to the nature of Ms. Krusto's work. It was clear from her oral evidence that she did not appreciate the type of patients Ms. Krusto treated on a regular basis, nor was she aware of the volatile situations she might find herself in.

I find that Ms. Krusto had a very stressful job that required her to be alert and emotionally responsive. She was required to treat patients experiencing a variety of psychological problems and disorders, some of whom were acutely psychotic with a history of harming people. She travelled alone to their homes, at times in areas that were not safe. She did not have any "backup" or support in the form of other nurses or staff, as would a nurse working on a hospital ward.

I further find that a nurse who is charged with treating patients suffering from psychological disorders on her own, especially in an isolated setting, should be on sound psychological ground herself. Ms. Lesick, the human resources manager at St. Elizabeth, testified that visiting mental health nurses needed to be in "good physical and mental condition," and that she expected her nurses to be 100 percent physically and mentally able to perform their jobs. That strikes me as a reasonable expectation given the type of work they are being asked to perform. Clearly, Ms. Krusto's mental and emotional condition during the period in question did not meet this threshold. Even Dr. Gillin-Garling characterized her mental condition at the time of the assessment in May 1997 as no better than "fair."

That characterisation is consistent with Dr. Newton's observations a few months earlier that Ms. Krusto's emotional state was "very tenuous" and that she continued to be disabled by psychological limitations. The evidence cited above leads me to conclude that when the demanding and stressful nature of Ms. Krusto's job is considered, the depressive symptoms she continued to manifest in May 1997 resulted in her being substantially unable to perform the essential tasks of her employment.

It became clear during the course of the hearing that few, if any, of the medical experts that Ms. Krusto consulted had a solid grasp of what her job entailed, and the type of patients she treated on a regular basis. This is a crucial part of the analysis. The Schedule mandates an individualized inquiry into each applicant's circumstances such that her level of disability is considered in the context of her specific job duties. Expert opinions and assessments are only as useful as the information they are based upon, and details regarding the level of communication expected of the person being assessed, as well as the setting in which she performs her duties are key pieces of information that an expert providing an opinion on disability must have. A fractured tibia may prevent a mail carrier from delivering mail on foot and hence from performing the essential duties of his job, while the same injury may not prevent a computer programmer from performing his.

Similarly, a person experiencing a moderate level of depression may not always meet the substantial inability test, if her work environment and job duties do not require her to relate to the public or to other people who rely on her for support. Each situation will depend on its own facts. Ms. Krusto treated patients with psychological disorders, on her own and often in very trying and challenging settings. She was also required to liaise with a variety of people in the health care field and the larger community on a daily basis. The evidence supports her contention that she was not able to muster the emotional strength and resources required to perform these tasks competently, on a regular basis. When she was able to do so, the evidence suggested that it came at a tremendous cost to the rest of her life and well being. In my view, this puts her over the required threshold.

Further, the fact that an applicant has returned to work does not mean that they are automatically disentitled from receiving further weekly benefits. Arbitrators have determined in several cases that applicants have continued to meet the disability test set out in the Schedule despite the fact that they have returned to work. In Laforme and Economical Mutual Insurance Company, (OIC A97-000679, June 11, 1998) the applicant returned to work three months after the accident and worked for approximately one year before leaving work and requesting that his benefits be reinstated. The medical evidence supported his claim that his pain had increased as he attempted to take on more activities, and the arbitrator found that he continued to meet the test at that point, despite the fact that he had returned to work for one year.

Similarly, in Gutzke and Dufferin Mutual Insurance Company (FSCO A99-000640, November 27, 2000) the applicant continued in his job as a masonry apprentice immediately after the accident, was then off work for five months and subsequently returned to modified duties for approximately four years, save for seasonal layoff periods. The evidence indicated that Mr. Gutzke continued to complain about pain throughout this period and steadily increased his intake of pain medication. He acknowledged that he had performed many of the essential tasks of his job during this period, but stated that he could only do so because he took increasingly high levels of medication and his quality of life had deteriorated. He spent long periods of time performing lighter duties, and often used up "banked" sick days to recover from the strain he felt when he was required to perform his full duties for consecutive days. The arbitrator found that Mr. Gutzke met the disability threshold for continued benefits under the Schedule, and ordered that he was entitled to weekly benefits from the date his benefits were terminated and ongoing into the future, subject to a deduction for any post-accident income earned.⁴

Similarly, I find in this case that despite returning to her job at St. Elizabeth for a period of time, Ms. Krusto continued to meet the relevant disability test. As discussed above, the hours she worked between November 1996 when she began the graduated return-to-work program and April 1997 were irregular, and she continued to complain about her physical and emotional difficulties. Although her hours of work increased in May 1997 and she worked approximately the same number of hours as she had before the accident for the ensuing five months, I have found that she remained disabled to the requisite degree by a psychological impairment throughout this period. It is clear from the evidence that Ms. Krusto experienced significant difficulties in carrying out her duties during that period, and that her impairment caused her to experience difficulties with her supervisor and ultimately led her to resign from her position at St. Elizabeth.

I note that my findings above are consistent with subsection 14(1) of the Schedule, which provides that a person receiving weekly income replacement benefits may return to work at any point within a two-year period after the accident without affecting her entitlement to resume receiving benefits, if she is unable to continue in her job as a result of injuries sustained in the accident.

Finally, I am satisfied on the evidence that Ms. Krusto remains disabled from performing the essential tasks of her pre-accident employment as a visiting mental health nurse. I find that the jobs she performed after leaving St. Elizabeth were of a different nature and involved duties that were less stressful than her position there. Any income she received from these or any other post-accident jobs must be taken into account in determining the amount of benefits she is entitled to, but the fact that she was able to work for various periods of times does not lead to the conclusion that she no longer meets the relevant test under the Schedule. Again, subsection 14(2) of the Schedule, which provides that after the expiry of the two-year post-accident period, an applicant receiving IRBs may work for periods up to 90 days without affecting her entitlement to resume receiving benefits if injuries sustained in the accident prevent them from continuing to work, is consistent with this analysis.

Implicit in my findings is the fact that Ms. Krusto was disabled at the 104-week point after the accident (February 1998). Accordingly, she is entitled to a Loss of Earning Capacity offer from the Insurer.

Causation:

The Insurer argues that Ms. Krusto's psychological difficulties pre-existed the accident, and that whatever symptoms or impairments remain can be attributed to her earlier problems.

The evidence indicates that Ms. Krusto was treated for depression in the aftermath of the first car accident in Florida, in 1989. She also sought treatment from a psychiatrist for depression-related symptoms in late 1991 and throughout 1992 after returning to Canada. Ms. Krusto then returned again to the United States to work for a period of time. Soon after her return to Canada in the fall of 1994, she consulted Dr. Hae Kim, another psychiatrist. She saw him on a regular basis for four months in 1995 until he himself was badly injured in a car accident in April. A note from Dr. Kim to Ms. Krusto's family doctor at that time indicates that she had complained of being depressed with anxiety for three months prior to their first session in December 1994, and that he had determined that there were "a number of psychosocial stressors including financial problems, unemployment and problems with her boyfriend."

In addition to her depression during the periods outlined above, the evidence indicated that Ms. Krusto had lived through a difficult childhood. Among other traumas she experienced, her parents divorced when she was a child. She advised the psychologists who assessed her that she was not good at judging people's characters, and that she had been "exploited by men."A few years prior to the accident, Ms. Krusto became involved with a man with substance abuse problems who she described as being manipulative and emotionally abusive.

It was this relationship and the questions it raised for her that led Ms. Krusto to consult Dr. Nehra, a psychotherapist, a few times shortly before the accident. She testified that she had decided to seek supportive counselling from Dr. Nehra in the hope that it would help her gain insight into other issues in her life. Ms. Krusto also saw Dr. Nehra a few times after the accident.

While it is clear that she suffered from depression at various times during the six and one-half years between her accident in Florida in August 1989 and the accident in question, I accept Ms. Krusto's uncontradicted evidence that she was not depressed and had not been taking anti-depressant medication for several months prior to the accident. She testified that in the period preceding the accident she felt motivated and was content with her life. I find support for this in her uncontradicted testimony that she was working steady, if part-time, hours at a job she enjoyed and felt challenged by, she was enrolled in a certificate program at Humber College in the area of psychosocial rehabilitation in the community and attended classes there two nights per week, and led an active social life. I find that Ms. Krusto was functioning at a reasonably high level during the period immediately preceding the accident in question.

The Insurer contended that Ms. Krusto's decision to begin to see Dr. Nehra just a few weeks before the accident means that she had been experiencing problems prior to the accident. Dr. Nehra was not called to testify and her notes of her sessions with Ms. Krusto were not filed into evidence as they had apparently been lost. I heard nothing to dispute Ms. Krusto's testimony that she had decided to see Dr. Nehra for supportive counselling and to gain insight into herself, sparked by her finally ending the manipulative relationship that she had been involved in. I find her decision to consult Dr. Nehra to be indicative of someone who had emerged from a difficult situation and was intent on addressing issues it had raised, as opposed to a sign of weakness or cry for help from someone who was depressed.

Unfortunately, Ms. Krusto appears to have slid back into a depressed state when her soft tissue injuries did not resolve in the few months after the accident as was expected.

There is widespread agreement among arbitrators at the Commission regarding the test to be applied to determine whether applicants with pre-existing conditions qualify for accident benefits. The following comments by Arbitrator Blackman in Hearn and Allianz Insurance Company of Canada (FSCO A 97-001667, August 17, 1999) accurately summarize the approach that has been taken:

This Commission has repeatedly held that the accident need not be the only cause of the subsequent injuries, but rather, must significantly or materially contribute to the Applicant’s impairment. In addition, this Commission has adopted the long-standing "thin skull rule" which, in the context of statutory benefits, means that one is not to be denied weekly benefits because one’s pre-accident physical, psychological or emotional condition makes one more vulnerable to disability than might normally be the case.

There are many cases in which applicants with pre-existing psychological problems or disorders that were found to have been exacerbated by an accident have been awarded continued benefits. In Ms. Z and Dominion of Canada General Insurance Company (FSCO A98-000124, March 7, 2000)⁵ the expert evidence indicated that the applicant's impairments were attributable to a complex interaction of factors, many of which pre-existed the accident. She was admitted into a psychiatric facility two months before the accident after experiencing significant marital, family and employment stressors. The arbitrator agreed that Ms. Z’s impairments were attributable to a complex interaction of several factors, but found that the accident had nevertheless materially contributed to her condition and that she was entitled to continued benefits.

In K.M. and General Accident Assurance Company of Canada (OIC A96-001057, January 27, 1998), the accident occurred a few months after an applicant with a pre-existing bipolar disorder gave birth to her first child and subsequently lost her job while away on maternity leave. She was admitted to a psychiatric facility a few weeks after the accident, and the arbitrator determined that the stress associated with the accident "hastened and deepened the development of her pre-existing condition...to a significant degree" and awarded her further benefits.

Finally, the arbitrator in Ms. B and Non-Marine Underwriters, Members of Lloyd's (OIC A-03947, June 24, 1996) determined that although the applicant had a propensity towards psychological and emotional problems and suffered from a personality disorder prior to the accident, she had been able to cope with the demands of school and work. She found that her pre-existing personality disorder had been exacerbated by the accident and that her past history rendered her more emotionally vulnerable to the effects of the accident.

While the circumstances of this case are different than those set out above, these decisions indicate that arbitrators have recognized, when warranted by the evidence, that applicants with pre-existing problems who nevertheless are able to function on a day-to-day basis prior to an accident should not be disqualified from receiving benefits when the accident exacerbates these problems.

In this case, while the psychologists who assessed Ms. Krusto disagreed about the degree to which the accident contributed to her psychological impairment, they each acknowledged that it had played some role. Dr. Gillin-Garling stated that the accident had aggravated her condition, while Dr. Shah determined that it brought her other pre-existing issues to the surface. Dr. Chan opined that Ms. Krusto's depression had developed as a result of the changes to her life after the accident, such as her chronic pain, reduced capabilities and stamina. While all of these opinions regarding the role played by the accident in Ms. Krusto's psychological difficulties were expressed in different ways, I find that the evidence establishes that the accident materially contributed to Ms. Krusto's disabling condition and that she is therefore entitled to further benefits.

Medical and Rehabilitation expenses:

While the focus of the evidence tendered at the hearing related to the issue of Ms. Krusto's entitlement to weekly income benefits, Ms. Krusto indicated at several points that her focus was on being able to access further treatment. She testified that she continues to experience pain in her neck and low back as well as regular headaches, and that she is in need of treatment that will relieve her pain. She stated that physiotherapy, a gym membership, occasional massage therapy and acupuncture would assist in reducing her pain. She also stated that she was in need of psychotherapy.

Dr. Wu supported Ms. Krusto's request for further treatment. He testified that further physiotherapy treatment encompassing modalities other than the ones that had been attempted without success would be useful. He also stated that a gym membership that would allow her to exercise on her own, as well as under the supervision of a kinesiologist would be reasonable. He recommended that she receive psychological counselling. He also opined that Ms. Krusto would benefit from vocational retraining as she is a motivated person who is frustrated by her physical and emotional limitations. Finally, Dr. Wu stated that she requires ongoing medication in order to balance her moods and to address her muscle pain.

Ms. Krusto received nine months of intensive physiotherapy in 1996. She began her treatment at the Clarkson Sports & Physiotherapy Institute, the clinic that Dr. Small had referred her to. She attended there for a few months, receiving regular massage and physiotherapy treatments. Feeling that the treatment provided there was inadequate, she transferred to Columbia Rehabilitation Centre in June 1996, where she continued her physiotherapy treatments, and received some massage therapy and acupuncture treatments. She also participated in a gym program at Columbia, and received some psychosocial therapy. She attended the Columbia clinic until late November 1996, when she began the graduated return-to-work program.

Following her return to work, Ms. Krusto received chiropractic treatment for a few months in early 1997. She was discharged from the care of her chiropractor in April 1997, with a recommendation that supportive care continue at a frequency of two to four times per month "in order to facilitate further improvement in her condition, as well as help her through the exacerbation we expect to see in this case." The Insurer declined to fund any further chiropractic treatment, and Ms. Krusto's need for further chiropractic care was assessed by a medical and rehabilitation DAC in July 1997. The chiropractor who performed the assessment reported that his findings on examination were indicative of mechanical neck pain and lower back pain, although he felt that Ms. Krusto was "pain focussed." He opined that further chiropractic care was not warranted, stating that further formal therapeutic intervention would be counterproductive and would only reinforce Ms. Krusto's perception of being injured.

Ms. Krusto testified that she attended a few physiotherapy sessions during the summer of 1998 in Orillia at her own expense, but that she stopped going because she could not afford to pay for the treatments. A Treatment Plan was submitted in July 1998 by Eileen Lavis, a physiotherapist at Back to Function, recommending eight weeks of physiotherapy treatments. Ms. Lavis also assessed Ms. Krusto and reported to the Insurer in August 1998 that she exhibited signs of "global chronic pain with fair to good range of motion, however, poor muscle balance and flexibility." She recommended six additional weeks of physiotherapy focussing on manual therapy and active release techniques to improve muscular flexibility, remove scar adhesions and improve strength. I was not advised whether the Insurer responded to this report or the recommendations made by Ms. Lavis.

The Applicant filed a document entitled "Future Care Cost Report" prepared by Joan Lee, a case manager and rehabilitation consultant employed by Dynamic Rehabilitation. This report recommends various treatments and estimates their cost both initially and into the future. The parties agreed that the costs projected into the future would not form part of the issues in dispute of this hearing. I do not place much weight on the recommendations contained in Ms. Lee's report, as she candidly admitted during her testimony that the treatments she set out as being reasonable and necessary were based on Dr. Wu's opinion that this was so. As well, Ms. Lee acknowledged that the recommendations she made are usually more suitable in the acute phase of a soft tissue injury, and that the effectiveness of these treatments four years post-accident is questionable.

The Insurer did not tender any evidence related to the reasonableness of the treatment sought by Ms. Krusto, other than the chiropractic DAC assessment. Counsel did ask Dr. Grant to comment on the report prepared by Ms. Lee. Dr. Grant testified that treatments such as massage therapy and acupuncture would not assist Ms. Krusto because they only provide temporary relief and do not cure symptoms. He confirmed that these modalities are usually attempted in the acute phase of an injury.

I am satisfied that Ms. Krusto continues to experience physical symptoms that relate back to the accident in question, such as pain and stiffness in her neck and lower back. Consequently, some form of treatment at this stage may be reasonable. Given my finding that she continues to be disabled from a psychological standpoint, I am also persuaded that she continues to be in need of psychological treatment. The question then becomes what type of treatments are appropriate, under sections 36 and 40 of the Schedule.

Ms. Krusto filed several receipts for medication she has used to treat her physical and psychological symptoms. I find these expenses to be reasonable. The Insurer is therefore mandated to pay for them under subsection 36(1)(c) of the Schedule.

I am not persuaded on the evidence that physiotherapy treatments at this stage, almost five years after the accident, will assist in improving Ms. Krusto's function and I therefore do not find them to be reasonable. I note that in his report of March 22, 2000, Dr. Wu did not include physiotherapy among the list of treatments that he speculated might provide relief to Ms. Krusto.

If Ms. Lavis' treatment plan of July 1998 was not approved by the Insurer, Ms. Krusto is not entitled to any expenses claimed for treatment provided pursuant to that plan. I find, however, that any costs that have been incurred by Ms. Krusto for a gym membership are reasonable expenses that should be borne by the Insurer. While physiotherapy may not assist someone suffering from soft tissue stiffness and pain almost five years after an accident, the evidence suggests that an exercise program designed to stretch and loosen stiff muscles will. I find that at this stage, a few sessions with a kinesiologist to assist Ms. Krusto in developing a fitness program comprising stretching and strengthening exercises that target her symptoms and set specific goals would be reasonable. As well, I find that her continued access to a fitness facility is also a reasonable expense that should be borne by the Insurer.

The evidence supporting Ms. Krusto's need for psychological treatment is compelling, and I find that this is also a reasonable expense under section 36. Finally, I am persuaded that expenses related to a vocational assessment and vocational counselling would be reasonable expenses under section 40 of the Schedule, in order to enable Ms. Krusto to explore occupational alternatives that are in keeping with her limitations, if she remains interested in outside assistance in this matter.

Repayment :

General Accident continued to pay Ms. Krusto's weekly income replacement benefits at $307.91 per week from November 1996 through May 1997, despite the fact that she was participating in the return-to-work program throughout that period. The Insurer alleges that the fact that neither Ms. Krusto nor her solicitors advised that she was earning income from employment while she continued to receive weekly benefits during this period constitutes an "error" within the meaning of section 70(1) of the Schedule, and should result in a repayment of those benefits. The relevant provisions are set out below:

70 (1) A person shall repay to the insurer any benefit received under this Regulation that is paid to the person through error, wilful misrepresentation or fraud.

(24) The obligation to repay a benefit received under this Regulation that was paid to a person through error does not apply unless notice is given under subsection (5) within twelve months after the payment was made to the person.

The Insurer concedes that no notice was provided to Ms. Krusto within 12 months after the benefits in question were paid, but states that it did not become aware of the issue until after that period had expired.

In its submissions on this issue, the Insurer also conceded that arbitrators have generally found that benefits will only be ordered to be repaid under this provision if the overpayment was "attributable in some material way to the actions of the applicant." This last phrase is a direct quote from the judgment rendered in the case of State Farm Mutual Automobile Insurance Company v. Chun Soo Kong,⁶ which interpreted the words "through error" that appeared in the repayment provisions in the previous Schedule. This statement was approved by the Ontario Court of Appeal in its endorsement in this matter (unreported). As pointed out by Arbitrator Leitch in Reda and Wawanesa Mutual Insurance Company (OIC A96-0011230, January 20, 1998), the words and legal context interpreted by the court are identical to those in the Schedule applicable to this case and arbitrators are therefore bound by this interpretation.

It is clear from the evidence set out above that not only was the Insurer well aware of Ms. Krusto's return to work in November 1996, but that it was responsible, through Ms. Almas at Work Return, for coordinating it. Ms. Almas was in regular contact with Ms. Krusto, her employer and the adjuster at General Accident during the period in question. These circumstances are quite distinct from those cases where an applicant returns to work and does not inform the insurer that she has done so for several months, in order to continue to collect weekly benefits. Given the Insurer's involvement in Ms. Krusto's return to work, I cannot conclude that the overpayment that occurred was attributable in "some material way" to the actions of the Applicant. Consequently, General Accident is not entitled to any repayment under section 70 of the Schedule.

Special Award:

Counsel for the Applicant contended that the Insurer's conduct in this matter warranted a special award. His submissions focussed principally on the actions of Ms. Almas and her predecessor at Work Return. He also contended that the Insurer knew, or ought to have known, that the graduated return-to-work plan would not work.

Subsection 282(10) of the Insurance Act mandates an arbitrator who finds that an insurer has "unreasonably withheld or delayed payments" to issue a special award against the insurer. I have already outlined some instances in which General Accident or Ms. Almas acted questionably and in a manner that was not in keeping with their obligations. However, these actions did not lead to any benefits either being withheld from Ms. Krusto or delayed. The behaviour objected to occurred just prior to or around the time of her return to modified hours in November 1996, or shortly afterwards. As noted above, General Accident continued to pay benefits to Ms. Krusto until May 1997, and only terminated the payments made after receiving the DAC assessment. While the continued payment of her benefits during the period that she was pursuing the graduated return-to-work may have been an error on the part of the Insurer, I cannot find that any payments were unreasonably withheld or delayed.

Although I have found fault with some of the findings in the DAC report and have not accepted some of the opinions contained in the reports of the IE doctors that Ms. Krusto was sent to, I do not find it unreasonable for the Insurer to have relied on these reports in terminating her benefits.

Accordingly, the Insurer is not liable to pay a special award to Ms. Krusto.

EXPENSES:

I did not hear any submissions on the issue of expenses. I urge the parties to resolve this issue among themselves, failing which they can advise the Commission that the matter should be scheduled for a further hearing on this issue.

February 20, 2001

Shari L. Novick Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 26

FSCO A99-000392

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

KAREN J. KRUSTO

Applicant

and

GENERAL ACCIDENT ASSURANCE CO. OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. General Accident shall pay Ms. Krusto weekly income replacement benefits, with interest, from May 23, 1997 onward, pending a Loss of Earning Capacity offer by General Accident pursuant to section 21 of the Schedule and subject to deductions for post-accident income earned.

2. General Accident shall pay Ms. Krusto the supplementary medical and rehabilitation benefits identified on page 3 of the decision.

3. General Accident is not entitled to a repayment of the benefits paid out to Ms. Krusto between November 1996 and May 1997.

4. Ms. Krusto's request for payment of a special award is denied.

February 20, 2001

Shari L. Novick 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. 2Diagnostic and Statistical Manual of Mental Disorders, Fourth edition, published by the American Psychiatric Association is the primary classification system for mental disorders used in North America.
3. 3Subsection 73(1) requires a person entitled to income replacement benefits (and other types of benefits) to obtain such treatment and participate in such rehabilitation as is reasonable, available and necessary to either permit the person to engage in suitable employment or shorten the period during which the weekly benefits are payable.
4. 4This decision has been appealed by the Insurer.
5. 5The Insurer has appealed this decision.
6. 6[1996] O.J. No. 2321 (Ontario Court of Justice - General Division) at para. 17.