Neutral Citation: 2004 ONFSCDRS 188

FSCO A01-000623

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LORANE SMYTH

Applicant

and

ZURICH NORTH AMERICA CANADA

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

September 20, 21 and 23, 2004 in Guelph

Appearances:

G. William Corby for Ms. Smyth

Jonathan A. Schwartzman for Zurich North America Canada

Issues:

The Applicant, Lorane Smyth, was injured in a motor vehicle accident on March 2, 1997. She applied for and received statutory accident benefits from Zurich North America Canada ("Zurich"), payable under the Schedule.¹ Zurich terminated weekly income replacement benefits on March 18, 2000. Ms. Smyth applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Is Ms. Smyth entitled to receive weekly income replacement benefits after March 18, 2000 pursuant to subsection 5(2) of the Schedule?

Result:

Ms. Smyth is entitled to receive weekly income replacement benefits after March 18, 2000 pursuant to subsection 5(2) of the Schedule.

Introduction

On March 2, 1997, the vehicle in which Ms. Smyth was a passenger was struck on the passenger's side when its driver, Ms. Smyth's common law spouse, went through a stop sign causing a collision with another vehicle. There is no dispute that Ms. Smyth sustained serious injuries in this accident: her pelvic ring was fractured in several places and four of her ribs were broken. The disputed issues are whether these or other accident-related injuries caused or contributed to Ms. Smyth's post-March 2000 symptoms and, if so, whether those symptoms caused Ms. Smyth to suffer from a complete inability to engage in any employment for which she was reasonably suited by education, training or experience as required by section 5(2) of the Schedule.

A Disability DAC (Designated Assessment Centre) examined Ms. Smyth in January 2000 and concluded that she did not suffer from a complete inability to perform four kinds of jobs for which she was tested. Zurich relied upon this opinion and upon medical and surveillance evidence which, it argued, contradicted Ms. Smyth's position that her post-March 2000 symptoms were caused by the injuries she sustained in the accident and her position that those symptoms prevented her from engaging in any employment. Ms. Smyth attacked the DAC's opinion, characterizing it as flawed and unrealistic. She pointed to medical evidence establishing a causal link between her accident-related injuries and her post-March 2000 physical symptoms and/or chronic pain condition. She denied that the surveillance evidence demonstrated her ability to work, noting that, if anything, it showed a deterioration in her condition over time.

Pre-accident employment

Ms. Smyth was 46 years old at the time of the accident. She had been in the workforce since the age of 16 when she left school with a Grade 8 education to begin a series of factory jobs. For the first ten years, she was a spot welder and a press operator in a furnace manufacturing plant. She then left the workforce for a few years but returned as a production line worker and a press operator in a plant that manufactured water heaters and pumps. That employment lasted until the early 1990s when, after another short break, she switched to working in a greenhouse, her job at the time of the accident in March 1997. Ms. Smyth's testimony included descriptions of her pre-accident jobs and, since she and her daughter Ms. Lori Marie Smyth worked together at the greenhouse during a certain period, both testified about Ms. Smyth's duties there. Based on this evidence, I find that Ms. Smyth's pre-accident employment history of nearly 30 years involved jobs which were physically demanding.

Post-accident recovery

Ms. Smyth testified that she spent the first week after the accident in the hospital and the next three months at home in bed, in a wheelchair or on a walker. She stated that when she saw Dr. W. J. Swan, an orthopaedic surgeon, in September 1997, he told her he could do nothing for her. She stated that she started physiotherapy in October 1997 but stopped in January 1998 because she found that it was making her condition worse rather than better. She testified that in March 1998 she was referred for "needleblock" treatment by Dr. K. S. Billings, an anaesthesiologist, and when that treatment did not provide lasting relief, for further physiotherapy. Her physiotherapist, she testified, eventually told her that she would have to "learn to live with it."

Ms. Smyth testified that she started suffering from falling episodes after the accident and that, reluctantly, she started to use a cane in the spring of 1998. She stated that she twisted her right knee on November 7, 2000 when, as indicated in a hospital record of that date, she "fell into hole on deck."² However, she denied that she had simply stepped into the hole by mistake; she maintained instead that, as often happened, she experienced a shooting pain across the left side of her pelvis, causing her to fall on to her right knee.

Ms. Smyth testified that in 2001, she came under the care of Dr. J. J. Gouws, a psychologist, who in turn referred her to Dr. M. P. Rathbone, a neurologist, Dr. J. de V. de Beer, an orthopaedic surgeon, and Dr. G. Bartolucci, a psychiatrist. According to Ms. Smyth, the latter two doctors told her that they could not offer any further treatment. She testified that she has seen Dr. Bartolucci to obtain pain relief medication but that she no longer takes morphine due to resulting stomach problems. She acknowledged that she benefited from the pain-coping techniques recommended by Dr. Gouws but she stated that her pain nevertheless got worse and that she is now never free from pain. She spends her days at home watching television, crocheting afghans and blankets, cooking simple meals for herself and her adult son, and laying down as required to control pain. She takes short, daily drives to take her son to work, to let her dog run in the country or to visit or go grocery shopping with her mother, though she does not always go into the stores.

It is clear that from Ms. Smyth's point of view, the accident put an end to her working life. She freely admitted that she made no attempt to return to any form of employment after the accident.³ She applied for Canada Pension Plan disability benefits in September 1998 and was eventually considered to be eligible effective February 1998, less than a year after the accident.⁴ She testified that she receives $450 per month. Ms. Smyth's common law spouse died of a heart attack in November 1998. She testified that she receives a "widow's pension", also in the amount of $450 per month.

Based on this post-accident history, the question before me may be put as follows: did Ms. Smyth simply withdraw from the labour market after the accident or did the accident cause or materially contribute to her developing a physical or psychological impairment which has, since March 2000, prevented her from returning to any employment for which she is reasonably suited by education, training or experience?

Physical ability to return to work

In my view, the evidence establishes a causal link between Ms. Smyth's accident-related injuries and at least some of her post-March 2000 physical symptoms. While there was conflicting evidence on the point, I accept the opinion of Dr. Paul H. Grant, a medical evaluator to whom Ms. Smyth was referred by Zurich in January 2003. His report included the following observations: "The pelvic fractures have gone on to satisfactory healing. There is no evidence of pelvic obliquity or instability as has been suggested elsewhere in the file. There is, however, evidence of the development of degenerative changes in the symphysis pubis, likely a consequence of the accident in question and likely the underlying cause of some of the discomfort Ms. Smyth is reporting in her groin and hips."⁵

Nevertheless, I do not find that Ms. Smyth's physical symptoms rendered her incapable of performing the tasks required by the four jobs for which she was tested at the DAC.

With respect to the first job, that of an electronics assembler, Ms. Smyth testified that she dropped the small objects she was required to handle because her fingers were "no good", one having been broken in the accident. She testified that after an hour of doing that job, she was tired and frustrated. After a further 30 minutes, she felt a tingling sensation in her fingers. The next job, as a self-serve gas bar cashier, required her to keep standing which she could not do (though she requested and was provided with a chair), to reach for items on a shelf which was too high for her, to lift a bag which was too heavy for her and to use a cash register which she had never done before. After being tested on this job for an hour and fifteen minutes, Ms. Smyth stated that she was in a state of "discomfort." She was given a lunch break of one hour and then tested on a third and fourth job. As to the third job, as a demonstrator in a retail store, Ms. Smyth stated that she could not open the bags containing the merchandise and could not serve people. Regarding the fourth job, as a telephone solicitor/telemarketer, Ms. Smyth testified that she stuttered on the telephone, that she had trouble reading her questions fast enough and that she was not the kind of person who could deal with the public or work in sales.

Ms. Smyth's evidence does not persuade me that she was physically incapable of performing the jobs in question. None of these jobs was physically demanding. While one of the DAC assessors, an occupational therapist, acknowledged Ms. Smyth's complaints of discomfort in the pelvic and groin areas, she concluded that, with appropriate modifications (in particular, a chair), Ms. Smyth was physically capable of performing the required tasks. I accept this opinion. Moreover, I find no medical evidence to support Ms. Smyth's statement that she broke her finger in the accident. I note that she identified crocheting as one of her post-accident activities, an activity which requires manual dexterity. Ms. Smyth also showed no tendency to stutter while giving her evidence. Finally, Zurich's surveillance evidence establishes that Ms. Smyth would be capable of travelling to a job site by car and walking from her car to any reasonably proximate work station.

Accordingly, I do not find that Ms. Smyth's accident-related physical symptoms caused her to suffer a complete inability to engage in any employment for which she was reasonably suited by education, training or experience.

Still, as the following additional evidence demonstrates, this finding does not end the enquiry into Ms. Smyth's entitlement to income replacement benefits.

Psychological ability to return to work

Pre-accident psychological history

The clinical notes and records of the family doctor, Dr. Fasel Bismilla, indicate that Ms. Smyth experienced bouts of anxiety and depression prior to the accident in March 1997. However, they also confirm that these bouts related to specific unhappy events in her life and were of limited duration as were any resulting periods off work.⁶ Despite the fact that Dr. Basmilla used the expression "chronic anxiety" in one note, the evidence does not establish that Ms. Smyth suffered from a chronic depression prior to the accident. I find that her pre-accident psychological problems were more accurately described as "reactive depression", the expression used by Dr. Basmilla in another note.

The clinical notes and records also indicate that Ms. Smyth was seen in 1987 by Dr. Brian D. Hanna, a rheumatologist, for a fibrositis syndrome or fibromyalgia affecting the use of her arms. Again, however, the notes confirm that Ms. Smyth returned to work after receiving therapy and worked for another ten years before the accident without receiving any further treatment for this condition.⁷ Moreover, while Dr. Hanna's post-accident report dated May 27, 2001 implicitly recognized psychological impairment as a common element of fibromyalgia and chronic pain, it appeared to assign a predominant role to psychological problems: "She does have generalized fibromyalgia tenderness but the pain quality is refractory and is so intense that there may well be an underlying affective disorder." ⁸

Finally, while I acknowledge that the expression "chronic pain" is occasionally found in Dr. Basmilla's pre-accident clinical notes and records, it is not used consistently. A note in 1988 described "chronic back ache and pain in both legs"; a note in 1993 described "intermittent low back pain" or "mechanical low back pain."⁹In any event, all the pre-accident notes attribute Ms. Smyth's complaints of pain to identified physical, as opposed to psychological, causes.

Post-accident psychological history

Within six months of the accident, it became apparent that non-physical factors would complicate Ms. Smyth's return to work. A Functional Abilities Report requested by Zurich, dated August 22, 1997, stated that she was "putting forth inconsistent effort during testing and was found to have pain focussed behaviour and a perception that her disability is more restricting than objectively demonstrated."¹⁰ A work hardening program was recommended on the premise that she would be able to return to her greenhouse job within four to six weeks.

Nevertheless, the first Disability DAC report, dated November 16, 1997, stated that Ms. Smyth was still "not capable of completing the essential tasks involved in her position as a greenhouse worker." The DAC assessor, Dr. Patti A. Galvin, a specialist in physical medicine and rehabilitation, found no evidence of "non-physiological behaviour" or "somatic amplification" but nor did she link Ms. Smyth's complaints of pain to any orthopaedic or neurological cause or express any opinion as to whether Ms. Smyth's condition would or should eventually improve.¹¹

A year later, on November 18, 1998, Ms. Smyth was seen at the request of her own counsel by Dr. J. E. Trotter, another specialist in physical medicine and rehabilitation. Dr. Trotter's report, dated January 19, 1999, contained the following opinion about the cause and nature of Ms. Smyth's ongoing complaints of pain.

IMPRESSION:

This 47 year old woman was involved in a motor vehicle accident 20.5 months ago during which she sustained undisplaced fractures bilaterally of the superior and inferior pubic rami. This is a stable fracture and does not require any treatment other than gradual mobilization. Healing of this type of fracture generally occurs within a year, although some symptoms, including weakness and pain, may persist for up to 2 years. Mrs. Smyth is describing severe pain (10/10 on the pain scale) which is unlike post-fracture pain. Post-fracture pain is localized to the area of fracture, is an aching sensation which is present following prolonged weight-bearing activities and with changes in the weather. These symptoms may go on a very long term basis. Mrs. Smyth's symptoms, on the other hand, are diffuse, unidentified with specific activities and can be brought on by minor stimulation of "sensor points" which produce "unbearable pain". I was not able to produce her pelvic symptoms today with compression of the bony pelvis itself but superficial palpation of the groin and lower abdomen reproduced some of her symptoms. This type of pain is, therefore, more characteristic of chronic pain syndrome.

Her chest wall symptoms have been present for an inordinately long period of time. Patients with fractured ribs may have muscular chest wall discomfort long after the ribs are healed but this is unusual after 1 year. Mrs. Smyth's chest wall pain occurs all day long, every 2-3 minutes regardless of what she is doing but is aggravated by some muscular activities such as elevating her arms and coughing. Pain was not elicited by compressive movements of the chest wall. Therefore, again these symptoms are reminiscent of chronic pain symdrome.

Chronic pain syndrome is associated with pain in one or more anatomical sites which is of sufficient severity to warrant clinical attention. It has been present for 6 months or longer. It causes significant distress or impairment in social, occupational, or other important areas of functioning. There is no obvious relationship between the amount of tissue damage and the degree of pain and suffering. Psychological factors, although not causative, are judged to have an important role in the onset, severity, exacerbation or maintenance of the pain.

With regard to the latter point, Mrs. Smyth does indicate on a questionnaire that she feels sad, angry, frustrated and has low self esteem. There were a number of statements made during the assessment which elaborate on these feelings.

Therefore, I feel that there are some psychological issues present which are unresolved and have not been addressed by any formal treatment.

RELATIONSHIP OF ABOVE DIAGNOSES TO MVA IN QUESTION

Mrs. Smyth did have a traumatic event with documented fractures as the precipitating event for her current pain symptoms. There is no evidence in her past history of a chronic pain disorder. Therefore, it is considered that the above diagnoses are a direct sequelae of the motor vehicle accident of March 2, 1997.¹²

A second Disability DAC conducted three sets of examinations in early 1999. In the first, a medical doctor and physiotherapist found no evidence of any physical impairment but noted that she "may have an underlying depression."¹³ In the second, a functional abilities evaluation, no reliable findings could be made as "Ms. Smyth did not put forth consistent and maximal effort during the evaluation", demonstrating instead "self-limiting pain behaviour" together with "displays of facial grimacing, sighing, moaning, and clutching onto reported symptomatic body area."¹⁴ The third examination, carried out by a psychologist and a psychometrist, led to the two-part diagnosis of "Depression (mild to moderate range) as well as Chronic Pain Disorder associated with psychological factors." It revealed "no compelling clinical data to suggest a malingering profile." It identified the accident as the cause of Ms. Smyth's chronic pain condition and it attributed her depression partially to the accident and partially to the recent death of her spouse in November 1998. The psychological assessors concluded that Ms. Smyth was psychologically incapable of returning to her greenhouse job. They wrote:

In light of the nature of Mrs. Smyth's essential tasks of her pre-MVA position (i.e., largely physical), we feel that the severity, extent, and nature of her current psychological impairments and significant difficulties in coping with persistent pain (which has impacted on her physical stamina, endurance, ability to manage any further increase in pain level, emotional control, ability to concentrate, self-confidence, and ability to function adequately in other key roles) render her substantially psychologically disabled from performing her work as a full-time Greenhouse Worker.¹⁵

By the time the second Disability DAC report was signed on March 10, 1999, more than 104 weeks had passed since the accident. As a result, the applicable test of eligibility for income replacement benefits had changed from one focussing on Ms. Smyth's ability to engage in her pre-accident employment to one relating to her ability to engage in any employment for which she was reasonably suited by education, training or experience. For this reason, Zurich requested an "addendum" to the report but the DAC facility refused, stating that "an entirely new assessment" would be required.¹⁶

A third and final Disability DAC assessment was conducted in January 2000. The resulting report is at the centre of the dispute between the parties. Two sets of examinations were conducted. A combined medical/physiotherapy evaluation again revealed no remaining impairment from Ms. Smyth's pelvic and rib fractures. A second "psycho-vocational evaluation" was carried out by a psychologist, a vocational evaluator and an occupational therapist. The psychologist and vocational evaluator conducted psychological tests prior to the job tests and, based on the results, expressed the opinion that Ms. Smyth "should be capable in cognitive and psychological terms of performing" the four jobs for which she was about to be tested.¹⁷ The occupational therapist carried out the job tests a few days later. She expressed the opinion that Ms. Smyth did not suffer a complete inability to engage in any of the four jobs.¹⁸

Analysis and Conclusion

In my view, the results of the psychological tests conducted by the third DAC support a finding that Ms. Smyth suffered from a chronic pain condition. The Beck Depression Inventory pointed to symptoms "more likely associated with chronic pain factors as opposed to depression." The Basic Personality Inventory showed a tendency toward hypochondriasis and denial. The Psychosocial Pain Response Inventory indicated that pain magnification, exaggeration and avoidance behaviours were also likely tendencies. None of the test results suggested that Ms. Smyth was feigning or fabricating her complaints of pain.

These test results were clearly present in the minds of the psychologist and the vocational evaluator when they wrote:

Ms. Smyth is showing signs of having a Pain Disorder with Associated Medical and Psychological Factors. Hypochondriacal features came through as a basic personality feature. There were no strong signs of debilitating levels of clinical depression or Post Traumatic Stress Disorder.
There is a high likelihood that Ms. Smyth will engage in symptom magnification as well as avoidance of any activities which she perceives will exacerbate her pain. She is apt to be very guarded in terms of physical activity, self-limiting and not highly motivated to push herself beyond the perception of pain. She is not likely to have a good understanding or acceptance of hurt vs. harm principles.¹⁹

The assessors went on to predict that Ms. Smyth's "self-limiting behaviours and pain magnification will likely surface during the work simulation trials as she struggles with her fear of re-injury and pain."²⁰ This prediction proved accurate. The report of the occupational therapist contains the following observations under the heading "consistency of performance":

The claimant was observed to be quite pain focused throughout the assessment with a fear of aggravating her symptoms and losing her balance. Although the claimant reported a fear of falling and requested to use her cane or was noted to lean on nearby objects throughout the assessment, she was able to demonstrate the ability to lift and carry bilaterally without the use of a cane and with only minimal difficulties with balance. Although it is felt that the claimant may have been able to complete heavier weights from a material handling perspective, the claimant was not asked to continue with various tasks due to subjective reports of pain as well as reported fear of being off balance. Also, although the claimant reported difficulty with weight bearing on her left leg and discomfort in her left groin and hip area, she was observed weight bearing primarily on her left leg when rising from a crawling position.²¹

In the absence of any evidence of malingering, I find that the self-imposed restrictions observed at the third DAC assessment were consistent with the diagnosis of chronic pain syndrome first made by Dr. Trotter and corroborated by the second Disability DAC. Moreover, while the second DAC report referred to the "largely physical" tasks of Ms. Smyth's pre-accident employment, it also stated that her psychological impairment and persistent pain had "impacted on her physical stamina, endurance, ability to manage any further increase in pain level, emotional control, ability to concentrate, self-confidence, and ability to function in other key roles." ²²

In my view, these factors are just as important as physical ability in determining whether or not a person suffers from a complete inability to engage in any employment for which he/she is reasonably suited by education, training or experience. Indeed, the very point of a psychological examination in the present context is to determine a person's employability by assessing these kinds of factors, not physical ability. While the "psycho-vocational assessment" conducted by the third DAC identified psychological problems which would affect Ms. Smyth's employability, the assessors' ultimate opinion appeared to ignore these findings and concentrate instead on Ms. Smyth's physical and cognitive abilities. I do not, therefore, rely upon that opinion.

I rely instead on the second DAC report as evidence establishing that Ms. Smyth has, since at least March 1999, suffered from a complete inability to engage in any employment for which she was reasonably suited by education, training or experience. In my view, the second DAC report supports this finding despite the fact that it did not specifically refer to the relevant test of eligibility or involve further assessments. I find that the psychological limitations identified by the second DAC were sufficiently disabling to render Ms. Smyth completely unable to engage in any employment, including employment which was not physically demanding.

I also rely upon the second DAC report as evidence establishing that the accident of March 2, 1997 caused or contributed to Ms. Smyth's chronic pain condition, though this opinion was also expressed by Dr. Trotter and others.

Ms. Smyth underwent three additional psychological examinations after the third DAC report was completed in early 2000. Late in the year 2000, she was examined by a psychologist at a Medical Rehabilitation DAC. The resulting report stated that she required additional treatment from Dr. Gouws in relation to several psychological impairments, including a Pain Disorder with a General Medical Condition and Psychological Factors, all attributable to the accident.²³

Ms. Smyth was then seen by a psychologist at Zurich's request in January 2003. The opinion resulting from this examination was that while Ms. Smyth had developed a chronic pain disorder as a result of the accident, she was no longer suffering from "any significant level of psychological impairment." This report nevertheless indicated under "present status" that "Ms. Smyth continues to report constant and severe pain." Under the heading "malingering probability", the report indicated that "there is a very low likelihood of exaggeration of psychological difficulties." However, the report later stated: "her responses to questionnaires assessing pain-related symptomatology indicated symptom exaggeration." ²⁴

Finally, in July 2004, Ms. Smyth underwent a psychological assessment during the course of a Catastrophic Impairment DAC. A "validity test" conducted as part of that assessment showed no evidence of malingering. The examiner diagnosed Pain Disorder Associated with both Psychological Factors and a General Medical Condition, Chronic, a condition which the examiner found to be caused by the accident. The examiner also noted that Ms. Smyth's symptoms "do not fluctuate greatly in severity and have not responded positively to treatment."²⁵

In my opinion, the results of the psychological examinations conducted in the years 2000 and 2004 are consistent with my findings based on the second DAC report. I regard the report obtained by Zurich in the year 2003 as both internally inconsistent and contrary to the preponderance of available psychological opinion.

In the result, I conclude that Ms. Smyth is entitled to receive weekly income replacement benefits after March 18, 2000 pursuant to subsection 5(2) of the Schedule.

INTEREST AND EXPENSES:

The parties did not address the issues of interest and expenses. If they cannot agree, they will so inform me in writing within 15 days of this decision. Where expenses are concerned, they will comply with the procedure stipulated by the Dispute Resolution Practice Code, Fourth Edition.

December 17, 2004

David Leitch Arbitrator

Date