Neutral Citation: 2004 ONFSCDRS 143
FSCO A03-001148
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MILKA BUTINA
Applicant
and
LIBERTY MUTUAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
William J. Renahan
Heard:
July 22, 2004, in Milton, Ontario.
Appearances:
Ian Little, Barrister and Solicitor, for Mrs. Butina
Pamela Blaikie, Barrister and Solicitor, for Liberty Mutual Insurance Company
Issues:
The Applicant, Milka Butina, was injured in a motor vehicle accident on June 30, 2001. She applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty"), payable under the Schedule.1 Liberty terminated weekly income replacement benefits on August 6, 2002. The parties were unable to resolve their disputes through mediation, and Mrs. Butina applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mrs. Butina entitled to income replacement benefits after August 6, 2002 pursuant to sections 4 and 5(2)(b) of the Schedule?
Is either party entitled to expenses of the arbitration proceeding pursuant to section 282(11) of the Insurance Act?
Result:
Mrs. Butina is entitled to income replacement benefits after August 6, 2002 pursuant to sections 4 and 5(2)(b) of the Schedule.
The parties may make written submissions to me on the issue of entitlement of expenses of the arbitration proceeding in accordance with the provisions of the Dispute Resolution Practice Code.
EVIDENCE AND ANALYSIS:
Background:
Mrs. Butina was 41 years old at the time of the accident. Her stationary vehicle was struck from behind with sufficient force to push her vehicle into the vehicle stopped in front of her, which in turn, was pushed into the vehicle in front of it. She was employed full time as an accountant at Maxxam Analytics Inc., a consulting firm. She was taking night courses and about half-way towards a degree as a Certified General Accountant.
She suffered mostly soft tissue injuries to her neck, shoulders and arms. She complains of dizziness, which prevents her from concentrating, and arm and wrist pain which prevents her from working at a keyboard. She has undergone a number of tests and investigations which have not revealed any hard findings. One of four neurologists she has seen, Dr. Jaime Silva, diagnosed an inner ear concussion, "cervicogenic in nature due to limitation of full range of motion of the neck." Another neurologist, Dr. Glynis Koponen, reported that "temporal lobe seizures strongly have to be considered" and prescribed an anti-convulsant agent. Because of three blackouts Mrs. Butina reported, Dr. Koponen advised the Ministry of Transportation to suspend Mrs. Butina's driver's licence. A rheumatologist, Dr. Ilse Lange-Mechlen, diagnosed fibromyalgia. Mrs. Butina's psychiatrist has diagnosed a Major Depressive Disorder of moderate severity which is resistant to treatment.
A number of specialists who examined Mrs. Butina for Liberty questioned her motivation to return to work.
In the one-year period following the accident, Mrs. Butina made several unsuccessful attempts to return to work.
Legal test for entitlement:
The test for entitlement to income replacement benefits is set out in sections 4 and 5 of the Schedule. For the first 104 weeks after the accident, the test is whether the insured suffers a substantial inability to perform the essential tasks of her employment. Thereafter, the test is whether the insured suffers a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.
Pre-104 week test:
At the time of the accident, Mrs. Butina worked 44 to 50 hours a week as an accountant. In the year before the accident, she earned about one month in overtime, half of which she took in pay and half in time off. She described her job as a troubleshooter. Her employer gave her accounting projects. She gave as examples bank reconciliations which were two years old and reconciling a $350,000 discrepancy in payroll records. Her work required concentration and the physical ability to work at a computer keyboard most of the day. This is the evidence I heard relevant to the pre-104 week test and I accept it as reliable.
Post-104 week test:
Mrs. Butina returned to the workforce in 1991 when her youngest child turned six. She worked in the accounts receivable department of a steel company for ten years, then did some contract work as an accountant and then joined her current employer in November 1999. At the time of the accident she earned $44,800 per year, was taking accounting courses and thought her career was moving ahead.
Liberty performed a vocational evaluation which identified several accounting clerical jobs as suitable. Mrs. Butina said these jobs were similar to what she did for the steel company and were below her in terms of challenge. She also said that if she could perform the tasks of those jobs, she could return to Maxxam.
Mrs. Butina frequently referred to her position at Maxxam as that of a Senior Accountant. She was taking courses towards a professional designation and I accept her testimony that a challenging job was important to her and that she enjoyed her job. The clerical jobs identified by Liberty are not suitable in terms of status or challenge and are therefore not suitable having regard to Mrs. Butina's "experience" as required by the post-104 week test.
What is more difficult is, the number of hours of work per week the notional suitable job would contain. At the time of the accident, Mrs. Butina had worked about 20 months at a job which required a significant amount of overtime. This is the only evidence I heard of her work history including significant overtime. I therefore find that the ability to work at a job which requires significant overtime is not a criterion for the notional suitable job.
Some of the accounting jobs identified in the vocational assessment pay close to what Mrs. Butina was earning at the time of the accident. I find that a suitable job, within the meaning of the post-104 week test, is a sedentary accounting job similar in status to what Mrs. Butina was doing at the time of the accident, but for a normal work week of approximately 37 hours.
Return to work and motivation:
In Foden v. Co-Operators Insurance Association (Guelph), (1978) 1978 CanLII 1622 (ON HCJ), 20 O.R. (2d) 728, Reid J. said:
No one, in my opinion, should be discouraged from attempting to take up their former work, or any work, out of fear that the attempt might be held against him. Far from necessarily proving that an insured has the capacity to perform his task it may, as in my opinion it does here, prove the reverse. There is no better evidence of incapacity to perform a task than the failure of an honest and sustained attempt to do it.
I heard and read considerable evidence of Mrs. Butina's unsuccessful attempts to return to work.
Although Mr. Little had the employment file, he did not read it or tender it as evidence. I therefore reviewed Mrs. Butina's testimony on the issue and compared it with what she had reported to others. Some of those who reported on Mrs. Butina's attempts to return to work did not clearly indicate the dates, however, I found sufficient reliable evidence to document Mrs. Butina's attempts to return to work and I recount it in chronological order.
The accident occurred on June 30, 2001. A few days after the accident, Mrs. Butina returned to work and stayed four to five hours on two days and went home because of pain and dizziness. On July 10, 2001, she worked for three hours and went home. On August 21, 2001, she changed family doctors to Dr. Ng, because her doctor at that time was too busy to see her when she wanted to see him. In September 2001, Mrs. Butina started working part-time, three hours a day. In November 2001, Mrs. Butina was working full time, sometimes up to 12 hours a day. She testified that in December 2001 she blacked out for what her co-workers estimated was 10 to 15 minutes. That month, Dr. Ng told Mrs. Butina that she should not work more than 20 to 30 hours per week. On December 18, 2001, the kinesiologist reported that he thought Mrs. Butina was working too hard. In January 2002, Mrs. Butina went back to working two to three hours a day, gradually increasing her hours. On March 21, 2002, the kinesiologist reported that Mrs. Butina felt pressured by her employer to work longer hours. In May 2002, Mrs. Butina was working full-time hours. In May 2002, her psychologist reported that the employer was trying to force her into long-term disability, and a rehabilitation counsellor reported that Mrs. Butina felt pressured at work and had to choose between full-time work or quitting and she chose full-time work. Mrs. Butina worked full-time to July 4, 2002, when she quit.
Throughout, Mrs. Butina complained of periods of dizziness, blurred sensation, inability to concentrate and arm and hand pain.
The test in Foden is whether the attempts to return to work were honest and sustained. I find that Mrs. Butina's attempts for the one-year period from shortly after the accident to when she quit work were sustained. The only question is whether they were honest attempts.
Insurer's examinations:
Dr. Paul Grant, an orthopaedic surgeon, examined Mrs. Butina on May 21 and 28, 2002. He reported that test results demonstrated extremely low levels of effort and the results were clearly not physiologic and were due to self-limitation. His opinion that she could resume her occupation is not helpful because Mrs. Butina was working full time at the time of these assessments, albeit with pain.
Dr. Jonathan Siegel performed a psychological assessment on May 23, 2002 and accepted Mrs. Butina's complaints that she was having difficulties adjusting to the accident and persistent pain problems. He recorded that Mrs. Butina was working six to eight hours a day and that her symptoms did not constitute a substantial psychological disability that prevented her from working. Again, his opinion is not that helpful since Mrs. Butina is working.
Dr. Konstantine Zakzanis, a neuropsychologist, assessed Mrs. Butina on June 24, 2002. He noted that she was having a difficult time with extensive hours and that validity measure tests indicated no evidence of feigning or exaggeration of cognitive impairment. He found a generalized slowing across neuropsychological measures, most evident on measures of manual and motor dexterity. He expressed the opinion that she was not substantially disabled from work, again at a time when she was working full time.
Dr. Brian Alpert, an orthopaedic surgeon, assessed Mrs. Butina on April 13, 2004. He found evidence of pain focussed behaviour, such as blunted affect and discrepancy in straight leg raises. Although he had some record of Mrs. Butina's attempts to return to work, he does not express an opinion on why her attempts failed.
A kinesiologist performed a functional abilities evaluation on April 14, 2004. She found consistently low performance, few objective signs of effort and inconsistencies between measured and distracted range of motion. She considered Mrs. Butina's test results unreliable. She made no comment on Mrs. Butina's attempts to return to work.
Dr. Siegel performed a second psychological assessment on April 20, 2004. This time he did not accept her complaints of pain. Test results raised "questions about her motivation." He recognized that her attempt to return to work was unsuccessful but recommended a gradual return to work. The only comment he made to explain why another return to work after a year of trying would be successful is his recommendation that Mrs. Butina's treating practitioners should convey to her that, from a medical perspective, she was capable of returning to work.
Dr. Zakzanis performed a second neuropsychological assessment on April 21, 2004. On one test he found that motivation and effort appeared to "be somewhat lacking" and on another Mrs. Butina scored far below what an impaired person would have scored raising the possibility that Mrs. Butina was not forthright, but the "validity measures were generally in the normal range, indicating that the assessment was somewhat valid and there is little evidence of feigning or exaggeration." Again, he found a generalized slowing across neuropsychological measures, most evident on measures of sustained and focussed attention. In an addendum he agreed with Dr. Siegel that "there may be significant issues of motivation which are impacting on perceived levels of impairment and disability." Like Dr. Siegel, his only comment on Mrs. Butina's attempted return to work was that it was unsuccessful and that on a further attempt, her treating practitioners should convey to her that, from a medical perspective, she was capable of returning to work.
Ability to return to Maxxam:
Mrs. Butina's testimony was generally consistent with what she had reported to others. When confronted with opinions that she could return to work she did not argue. She spoke about her pain and disability in a matter of fact manner and did not overstate her problems. Mrs. Butina expressed a desire to return to a work environment which she enjoyed. Her testimony is contrary to the opinions of Dr. Siegel and Dr. Zakzanis that she lacked motivation.
Dr. Stephen Bernstein did a psychological assessment a month after the accident. He does not record why he did it. He noted that Mrs. Butina did not appear to be in distress and that at times she was up-beat. "When asked further about this disparity between what she is feeling and how she appears on the surface, she said that it is her way to try to be pleasant and positive in her interactions with people and that its [sic] hard to just let go and express negative feelings." I noted the same disparity.
As well, Mrs. Butina testified, and the reports filed on her behalf confirmed, that she enjoyed her work and she wanted to return. The reports commissioned by Liberty do not place nearly as much emphasis on Mrs. Butina's wish to return to a job she enjoyed.
I conclude that Mrs. Butina presented a different impression on insurer examinations to that which she presented to her treating doctors and at this hearing.
She testified that in April 2001 her employer gave her an A plus performance review and that one year later her employer gave her a horrible review which devastated her.
Mrs. Butina testified that she liked her job and others reported the same. Her kinesiologist reported that Mrs. Butina postponed and then cancelled an accounting examination, further evidence of her hope that she would recover her former life.
I believe Mrs. Butina's sustained attempts to return to work at Maxxam were honest and that she is substantially disabled from performing the essential tasks of that employment. She is therefore entitled to weekly income replacement benefits from August 6, 2002 to June 30, 2003.
Ability to engage in suitable employment:
I find that the main difference from suitable employment and what Mrs. Butina did at Maxxam is that suitable employment is a regular work week without overtime.
I have found that in the year after the accident, at times Mrs. Butina worked full-time hours and at other times she worked overtime. However, she did this because she felt pressured by her employer. She was not able to work regular hours on a sustained basis. Accordingly, I find that Mrs. Butina was completely unable to engage in suitable employment and continues to be. She is therefore also entitled to weekly income replacement benefits beyond June 30, 2003.
EXPENSES:
If the parties are unable to agree on the issue of entitlement to or amount of expenses of the arbitration proceeding, they may request an appointment with me within the time limits prescribed by the Dispute Resolution Practice Code (Fourth Edition).
September 29, 2004
William J. Renahan
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 143
FSCO A03-001148
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MILKA BUTINA
Applicant
and
LIBERTY MUTUAL 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:
- Liberty Mutual Insurance Company shall pay Milka Butina weekly income replacement benefits from August 6, 2002.
September 29, 2004
William J. Renahan
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.