Neutral Citation: 2004 ONFSCDRS 20

FSCO A02-000307

BETWEEN:

SAVITHIRI SIVANANTHAN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Anne Sone

Heard:

January 20, 21, 22, 23 and March 28, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on April 24, 2003.

Appearances:

Moira Gracey for Mrs. Sivananthan

Christopher J. Schnarr for State Farm Mutual Automobile Insurance Company

The Applicant, Savithiri Sivananthan, was injured in a motor vehicle accident on October 21, 1999. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits on June 15, 2000.

The issues in this hearing are:

Is Mrs. Sivananthan entitled to receive a weekly income replacement benefit of $293 per week from June 16, 2000 to date, and ongoing, pursuant to sections 4 and 5 of the Schedule?
Is State Farm liable to pay Mrs. Sivananthan's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mrs. Sivananthan entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Mrs. Sivananthan is entitled to receive a weekly income replacement benefit of $293 per week from June 16, 2000 to date, and ongoing, pursuant to sections 4 and 5 of the Schedule.
If the parties cannot agree on the entitlement to, or the amount of the expenses of this proceeding, they may request a date for a hearing on this issue by writing to the Commission within 30 days of the date of this order, in accordance with Rule 79.1 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).
If the parties cannot agree on the issue of entitlement to interest for overdue payment of benefits, pursuant to section 46(2) of the Schedule, they may request a date for a hearing on this issue by writing to the Commission within 30 days of the date of this order.

Introduction

Although I deal with Mrs. Sivananthan's credibility in more detail later in this decision, I note that I found her to be a credible and reliable witness and, therefore, I accept her testimony. Mrs. Sivananthan was a front seat passenger when a van in the lane to her right struck the vehicle she was sitting in. The van was trying to make a left turn into a mall.² Although the damage to her vehicle was not extensive, it was not drivable after the accident.³ Mrs. Sivananthan required her daughter's assistance to get out of the car.⁴ Mrs. Sivananthan reported headaches, dizziness, and vomiting all day on the day after the accident to her family doctor, Dr. Shiva Gaur.⁵ She subsequently reported back, left elbow pains and psychological difficulties.

Mrs. Sivananthan is married and has two daughters. Prior to coming to Canada, she worked for the government in Sri Lanka in increasingly responsible clerical jobs for 17 years.⁶ She did not take time off after the birth of her children.⁷ In Canada, after taking upgrading courses and obtaining her Canadian high school diploma,⁸ she worked in a series of contract jobs.⁹

At the time of the accident, Mrs. Sivananthan was working as a data entry clerk at Metropolitan Collection Service Inc. ("Metropolitan"). Her duties involved filing and data entry. The physical demands of the job were sedentary. She enjoyed her work, and got on well with her supervisor. She lost this job after the accident in late October or November of 1999, when she requested accommodation for her return to work. Subsequently, Metropolitan went out of business.

After the accident, Mrs. Sivananthan assisted her husband with his newspaper route. She stayed in the car folding newspapers while he delivered the papers. She did not receive any remuneration for this work. Her husband testified that her mistakes cost him more than her efforts were worth, but he thought it important that she get out of the apartment.

She was so high functioning prior to the accident that, in addition to working full time, she kept track of her and her children’s schedules without written notes,¹⁰ engaged in dressmaking as a hobby,¹¹ and looked after all the household chores.¹²

The Impairments:

Mrs. Sivananthan testified that since the accident, she has been suffering from continuing back pain, a major depressive disorder, anxiety, a panic disorder and severe claustrophobia.¹³ She alleges that these impairments have severely affected her ability to engage in employment.

The impact in the accident occurred where Mrs. Sivananthan was sitting.¹⁴She watched it happen,¹⁵ and testified that, for her, the accident was severe¹⁶ - she thought she was going to die. She testified about how she felt when the other car hit her car: "I thought everything gone, that's it. My life, I thought..."¹⁷ Her predominant emotion after the accident was one of fear.¹⁸

Panic Disorder

Mrs. Sivananthan alleges that as a result of the accident, she suffers from a panic disorder that has affected her ability to use elevators, public washrooms, public transit, to drive herself, and possibly to engage in new or non-routine activities.

Mrs. Sivananthan has been unable to drive a car since the accident,¹⁹ except on a couple of occasions in driving classes in which her instructor asked her to stop the lessons.²⁰ As a result, she lost her driver's licence,²¹ and is dependent on others to drive her everywhere. She maintains that this fear has been continuous since the accident.²²

Mrs. Sivananthan has been unable to use an elevator alone since the accident. Although she felt fear getting into elevators after the accident,²³ Mrs. Sivananthan stated that she did not realize until after her husband started work in April or May of 2000, that the fear she felt getting in an elevator was actually so severe that she could not even get into one by herself.²⁴

Mrs. Sivananthan reported her fear of elevators to her physiotherapist on February 3, 2000,²⁵to her doctor sometime before April 3, 2000, and to Dr. Young at the Designated Assessment Centre ("DAC") assessment on May 29, 2000.²⁶ It is documented in her psychiatrist's initial report²⁷ and on the majority of her visits to him.²⁸ Mrs. Sivananthan gave evidence that she is able to go in elevators if there is someone else there, but in two and a half years has only once or twice been able to force herself into one on her own.²⁹ On those occasions, Mrs. Sivananthan testified that she experienced pain like she was going to have a heart attack,³⁰ felt unable to breathe³¹ and felt "scared to death."³² These feelings are so severe that she testified that it is "better to die than to go in the elevator alone."³³

Mrs. Sivananthan gave evidence that she cannot leave her apartment to go anywhere alone.³⁴She states that her inability to use the elevator, together with her transportation problems, have prevented her from showing up at job interviews.³⁵

Mrs. Sivananthan alleges that this impairment affects her ability to engage in any competitive employment in other ways. She has panic attacks about closed rooms, which makes her unable to use most commercial washrooms, unless someone accompanies her, or stands outside the door.³⁶She cannot lock the washroom door due to her claustrophobia.³⁷ She states that this impairment is no minor inconvenience, if you consider the possible consequences of being unable to use a washroom when needed during a full working day, including the commuting time.

Mrs. Sivananthan's anxiety attacks have also occurred while using buses and crossing the street to make a connection.³⁸ To use public transit, she needs to make arrangements to ensure someone is waiting for her at the other end.³⁹ As a result, she alleges her ability to use public transportation is restricted to the point of functional incapacity.

Cognitive problems

Mrs. Sivananthan also alleges that she suffers from cognitive and memory problems. Mrs. Sivananthan said she felt unable to concentrate⁴⁰ which affects her ability to read, follow television or radio programs, or engage in conversation. It also led to her making errors when helping her husband with his newspaper route.⁴¹ Mrs. Sivananthan's daughter gave evidence about changes in memory she has observed in her mother’s daily life, of her inability to remember phone numbers and appointment dates. Mrs. Sivananthan states that she experiences an inability to sit and concentrate on work,⁴² which was confirmed by the observations of the vocational assessor, Ms. Julia Leary.⁴³

Chronic pain

Mrs. Sivananthan also alleges that she suffers from continuing or chronic pain in her back particularly, which impairs her ability to sit, walk or stand for extended periods.⁴⁴ She contends that this pain limits the range of jobs for which she is suitable and may affect her ability to work full time.

Law - Statutory Framework:

The issue I have to decide is whether Mrs. Sivananthan is entitled to income replacement benefits after June 15, 2000, and if so, for how long.

Under sections 4 and 5 of the Schedule, I must answer the following questions.

As a result of the accident, did Mrs. Sivananthan suffer a substantial inability to perform the essential tasks of her employment from June 15, 2000 until October 28, 2001?
As a result of the accident, does Mrs. Sivananthan suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience from October 29, 2001?

MEDICAL EVIDENCE:

Dr. Joseph Kwok

On January 7, 2000, at the request of State Farm, Dr. Joseph Kwok, orthopaedic surgeon, performed an examination of Mrs. Sivananthan. Although he acknowledges that according to the patient, she is still symptomatic at the present time, he concludes in his report that Mrs. Sivananthan "is currently not disabled to return to her pre-accident activities including normal daily activities, housekeeping activities and work (pre-accident hours and duties as a data entry clerk)."⁴⁵ Dr. Kwok does not address (and as an orthopaedic surgeon is not qualified to address) Mrs. Sivananthan's psychological symptoms. As the crux of Mrs. Sivananthan's claim is that she suffers from psychological disabilities, Dr. Kwok's report is of lesser assistance.

AssessMed

State Farm also relies on assessment reports prepared by AssessMed, a Designated Assessment Centre ("DAC").⁴⁶ The DAC reports consisted of a Job Demand Analysis conducted by Ms. Shelley Marie Elliott, occupational therapist; a Medical Evaluation & Functional Abilities Evaluation prepared by Dr. J.T. van Schoor, and a Psychological Assessment Report prepared by Dr. Donald Young, psychologist. In an Executive Summary received by State Farm on June 15, 2000, the DAC assessors concluded that "there is no support to Ms. Sivananthan’s claim that she continues to suffer from a disability in respect to income replacement benefits as a result of the motor vehicle accident of October 21, 1999."⁴⁷ Ms. Elliott and Dr. van Schoor did not address Mrs. Sivananthan's psychological symptoms as being within their area of expertise. Since Dr. Young testified at the hearing, I will go into his evidence in more detail later in this decision.

Dr. Bernard Woolford

Mrs. Sivananthan's family doctor, Dr. Gaur, referred Mrs. Sivananthan to Dr. Bernard Woolford, an orthopaedic surgeon who saw her on August 10, 2000. He saw her again on May 31, 2001, and arranged for an MRI. In a letter dated January 3, 2002 to Dr. Gaur, Dr. Woolford states that "[t]his patient's MRI showed minimal degenerative changes at L3-4 and moderate facet osteoarthrosis at L4-5 with mild disc degeneration."⁴⁸ He concludes by saying, "I feel the patient is fit for a return to work." Once again, since Dr. Woolford does not address Mrs. Sivananthan's psychological symptoms.

Dr. J. Rajendra

Dr.Gaur also referred Mrs. Sivananthan to a Tamil speaking psychiatrist, Dr. J. Rajendra. Tamil is Mrs. Sivananthan’s native tongue, and the one in which she is most easily able to express herself. She initially saw him on January 8, 2001, and has continued seeing him regularly. He wrote an Ambulatory Care Clinic Report dated January 8, 2001, which states as follows:

...She had tried to get back to work last year and found it very difficult to face the interview situation, especially being working in close spaces. She says she has difficulty in being in close spaces, and going in the elevator she becomes quite panicky and develops several physical symptoms like tightness in her chest, palpitations, tremors, sweating and shortness of breath. She has been having panic attacks, even when she is at home and also during the night she is woken up...

She had been tried on Paxil for which she had allergies.

Based on Mrs. Sivananthan’s history and symptoms, Dr. Rajend ra diagnosed a major depressive disorder, moderate type and a panic disorder. He prescribed Effexor, increasing its dosage after five days, and Clonazepam. He also stated:

She generally feels very anxious to drive. She has been avoiding to drive because of fear of driving and also has difficulty traveling in cars because of her phobia as well as the fear...⁴⁹

In a report dated August 30, 2002, he states:

Her panic attacks have also improved but she still has difficulty in going in elevators and in travelling in a car. There has been some improvement in going in elevators; she is able to do so when there is somebody with her. The intensity of the anxiety has reduced and she is much more comfortable. Her concentration has improved and with this her memory has improved as well.

I have encouraged her to make changes by behaviour therapy methods and also I have encouraged her to go out frequently in order to overcome her fears. She has been complying with treatment and she has shown much improvement.

In summary, I feel that she has shown improvement and her prognosis is fair and I think with vocational rehabilitation she could try to return back to work.⁵⁰

As Dr. Rajendra is an expert in the field of Mrs. Sivananthan's psychological symptoms, and was able to communicate with her in her native tongue of Tamil, I give significant weight to his report. I also note that although Mrs. Sivananthan has shown improvement, as of August 30, 2002, she would still require vocational rehabilitation before trying to return to work. As a result, she was sent to Ms. Julia Leary, a vocational counsellor, to assist her in getting back to work.

There were two medical witnesses who testified at the hearing. I will describe their evidence in more detail.

Dr. Shiva Kumar Gaur

Dr. Shiva Kumar Gaur is Mrs. Sivananthan's family doctor. She has been seeing him since November 1989, and he called her a "very responsible patient." She did not take an ambulance to the hospital after the accident, as she wished to see him instead. In a report dated July 22, 2002, he indicated that she sustained severe back and left elbow injuries in the accident. He stated that after she received appropriate treatment her left elbow recovered, but her back pain worsened. He also indicated that later she developed severe claustrophobia, panic disorder and post-traumatic depression. He further states that, "She has difficulty in subway traveling or use of elevators alone due to claustrophobia. She couldn't do close MRI and had to wait for open MRI."

He offers the following opinion:

In my opinion Mrs. Sivananthan is capable of doing light work like office job or light industrial job. She is unable to work in high-rise buildings or work in down town, which requires subway travel because of significant claustrophobia.

In my opinion, at present Mrs. Sivananthan is capable of returning to a suitable employment considering her education, past experience, training and present disability. At present, she is unable to work in closed space or small room.⁵¹

As State Farm noted in its submissions, Dr. Gaur testified in a credible and straightforward fashion. However, he did not treat Mrs. Sivananthan for her psychological difficulties after January 2001, and so is not in as strong a position as Dr. Rajendra to provide an opinion as to whether she subsequently suffered a psychological disability from employment. That being said, he testified that he encouraged an optimistic outlook, and admitted that maybe her mental condition was worse than he thought. It was also clear that he thought a patient’s overall health was more important than collecting insurance. Therefore, he encouraged all his patients to go back to work, so they would not think he was giving up on them. In addition, given Mrs. Sivananthan’s eagerness to go back to work, and her tendency to downplay her phobias, it is not surprising that he provided her with a note for Employment Insurance indicating that she was capable of doing a light job and came to this conclusion in his report. However, I note that his conclusion that she could return to suitable employment considering her education, training or experience, was also qualified by a reference to her present disability, and to her significant claustrophobia. Dr. Gaur admitted at the hearing that he was mainly focused on keeping Mrs. Sivananthan's hopes up, rather than assessing disability in his reports. He also agreed, on reflection, at the hearing, that Mrs. Sivananthan was not able to engage in competitive employment without going through the Recommendations set out on page 8 of Ms. Leary's Vocational Assessment.

These Recommendations are as follows:

As stated in my summary, Savithiri is prevocational; without change in her current level of functioning, she will not be able to work.

Savithiri should continue to see her psychiatrist in order to monitor her emotional difficulties and medication.
Cognitive Behavioural Therapy would be useful to teach Savithiri practical ways to deal with overwhelming feelings of anxiety, claustrophobia and depression that she encounters on a daily basis. This will include techniques to overcome her fear of riding elevators, commuting and being in enclosed spaces.
Savithiri will likely benefit from involvement in a support group for woman [sic] dealing with similar emotional issues.
Vocational Rehabilitation/Work Hardening will help Savithiri recondition herself to the physical demands of employment, as well as teach her accommodation strategies.
Workshops or counselling addressing issues of self-esteem and confidence will be useful.

If Savithiri's condition improves and she is able to pursue employment, the following steps should be considered:

Savithiri should consider the services of a Career Counsellor, someone to help her explore her options within the clerical field, conduct labour market research, and act as a case manager for additional referrals and services that may be required. JVS Career Counsellor, is well suited to guide Savithiri through this process. An appointment can be made with ...
Savithiri will likely require short-term computer training to refresh her skills.
Savithiri will benefit from assistance with job search techniques including resume writing, cover letters, networking, and interview skills. Programs that offer these services and more include the Office Workers Career Centre and the Women in New Roles at JVS north...
Savithiri is advised to return to work slowly, starting with part-time hours.
The assistance of a Job Coach would be useful in helping Savithiri re-adjust to the world of work in a supportive environment, and give her extra time to learn.

Because of his long-standing doctor-patient relationship with Mrs. Sivananthan, and his dedication to the welfare of his patients, I give significant weight to Dr. Gaur's opinion and particularly his testimony.

Dr. Donald Alan Young

Dr. Donald Alan Young is a highly qualified and experienced psychologist. He has been registered to practice psychology in Ontario since 1986. He has been in private practice, and worked for 20 years at the Centre for Addiction and Mental Health. He is also an Assistant Professor in the Department of Psychiatry, Faculty of Medicine at the University of Toronto.

Dr. Young examined Mrs. Sivananthan on May 17, 2000, and prepared a DAC - Psychological Assessment Report,⁵² in connection with a Disability DAC. At page 4, he notes "With respect to Ms. Sivananthan's emotional status, she reported having anxiety. She said that she is afraid to enter an elevator and is tense in a car. She reported being always depressed and she feels like crying."

At page 9 of the Report, under Psychologist's observations, he states that Mrs. Sivananthan "was entirely cooperative during the clinical interview and did not appear in any acute psychological distress."

Under the Test Results section at page 10 of the report, Dr. Young states the following:

On two detailed personality inventories, the Personality Assessment Inventory and the MMPI-II, Ms. Sivananthan's protocols were noteworthy for elevations on scales indicative of depression, somatic preoccupation, and anxiety.

On a test designed to detect the presence and nature of anxiety, Ms. Sivananthan scored at an elevated level. There was indication that she is, by nature, prone to anxiety and that this is, in part, a characterological, longstanding tendency....

A number of validity measures were given, and all findings were normal. Thus, it does not appear that Ms. Sivananthan exaggerates what symptoms she reports having. The level of effort and care demonstrated during this assessment was also found to be valid.

He also notes under Summary and Opinion at page 11:

The psychological test results were salient for the presence of somatic preoccupation and concern, marked depression, and, to a lesser extent, anxiety...

In regard to the functional effects of Ms. Sivananthan's accident-related psychological difficulties, her preoccupation with her physical status, her low mood and anxiety likely result in a degree of cognitive inefficiency. This is reflected in her performance on attentional measures on the Cognistat. However, her scores were still within normal limits and only modestly depressed when compared to other cognitive functions.

As a result of the above findings, I would not consider Ms. Sivananthan to be cognitively or psychologically disabled as a result of the motor vehicle accident. She believes that she could presently return to work on at least a part-time basis. Her low mood and anxiety are no doubt unpleasant and, as noted, she is less cognitively efficient. I would consider these difficulties to be in the realm of an impairment of mild to, at most, moderate degree, but I do not see them as constituting a disability.

He concludes that as a result of the accident, Mrs. Sivananthan is not substantially unable to perform the essential tasks of the employment she was engaged in at the time of the accident.

State Farm called Dr. Young as a witness. During his examination-in-chief, he provided a summary of how he came to his conclusion. Dr. Young synthesized Mrs. Sivananthan’s test data, clinical presentation, medical records and nature of treatment. He also looked at her attitude, which he found refreshingly positive. His belief at that time was that her prognosis was very good.

Dr. Young testified that Mrs. Sivananthan’s symptoms of headaches, dizziness and vomiting all day on the day after the accident may be indicative of a head injury or of an "acute stress reaction."⁵³

He re-stated at the hearing that Mrs. Sivananthan was able to return to work part-time. Full-time work would be "an empirical matter."⁵⁴ His suggested courses of treatment for anxiety included sublingual lorazepam (a fast-acting medication that can decrease anxiety until a person gets used to something) and systematic desensitization.⁵⁵ There was no evidence that Mrs. Sivananthan had received either treatment.

Dr. Young testified that if a person's "work or their home is on a floor that in order to get there, it's mandatory that they use an elevator,"⁵⁶ that an elevator phobia "so severe, a person cannot even walk into one" can be "pretty disabling." I note that Mrs. Sivananthan lives on the eighth floor of an apartment building.

I am concerned about a number of factors that led to Dr. Young's conclusion that as a result of the accident, Mrs. Sivananthan is not substantially unable to perform the essential tasks of the employment she was engaged in at the time of the accident. First, he was not aware of the extent of her anxieties concerning elevators and cars. In fairness to Dr. Young, this was mainly due to the fact that Mrs. Sivananthan did not mention these anxieties as primary problems. Second, he felt that her elevated test scores in areas such as depression and anxiety could be explained by that being a common finding in an individual who is experiencing pain. He assumed that the reading was falsely high, without much more investigation. Third, in terms of clinical presentation, he saw no acute or disabling psychological distress. Along with that was the fact that she had been with the psychometrist all day. Although she complained of pain and a headache, she managed to do the testing all day. However, Dr. Young had met with Mrs. Sivananthan in the middle of the day, for under an hour. He was, therefore, not in a position to evaluate how she fared during the whole day. Fourth, because she was on a low dose of the anti-depressant, Serzone (200 mg per day), he assumed that it was effective. He also assumed that anyone with severe symptoms would be raised to a dosage that worked. However, that did not take into consideration that she may have been on a low dosage for other reasons. For example, she had had an adverse reaction to Paxil, which was the anti-depressant she was initially prescribed. She may have been on a low dose of Serzone because of concerns as to whether she could tolerate more. Fifth, Mrs. Sivananthan’s own eagerness to work was a factor which swayed him.

The most important reason why I have concerns regarding Dr. Young's conclusion that Mrs. Sivananthan is not substantially unable to perform the essential tasks of the employment she was engaged in at the time of the accident was his admission at the hearing that at the time he saw her he believed she could return to work on a part-time basis. I find that this undermines his conclusion in the DAC report, since at the time of the accident, she was working full time.

VOCATIONAL EVALUATION:

After Dr. Rajendra’s report indicating that Mrs. Sivananthan needed vocational rehabilitation, Mrs. Sivananthan attended a vocational evaluation with Ms. Julia Leary of JVS Toronto on November 11, 12 and 13, 2002. On the basis of her meeting with Mrs. Sivananthan, to test and observe her, Ms. Leary prepared a Vocational Evaluation dated November 20, 2002.⁵⁷ This report was also signed by a psychologist, Dr. Ruth Borchiver. State Farm strongly objected to Ms. Leary rendering an opinion as an expert in vocational assessment and rehabilitation. In its view, the crux of the report was based on things upon which she was not qualified to opine. Instead, State Farm recommended that I accept the observations of Ms. Leary as that of a lay person. I find that submission problematic for the reasons set out below.

In R. v. Mohan⁵⁸, the Supreme Court of Canada looked at the admissibility of expert evidence. It stated as follows:

Admission of expert evidence depends on the application of the following criteria: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert.

State Farm’s objection is based on the fourth criteria. It questions whether Ms. Leary is a properly qualified expert. The Supreme Court of Canada in Mohan defines an expert as "a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify."

Ms. Leary testified and I accept that she has a Bachelor of Arts degree (with distinction) from the University of Toronto. She also has a Diploma in Career and Work Counselling from George Brown College. In addition, she has achieved level 'B' certification for vocational assessment. In order to achieve this level she had to have an undergraduate degree with either training in statistics, or specific certified training for each vocational test. She has also completed the Valpar Work Samples and Computerized Assessment Training. At the time of the hearing she had over two years of experience as an Employment Counsellor and Vocational Evaluator. She had performed approximately 200 of these assessments, where she had extensive opportunities to make behavioural observations.

State Farm did not object to having Ms. Leary testify regarding the labour market in Toronto and the demands of employers. It objected to her rendering an opinion based on her observations and Mrs. Sivananthan's subjective reports of physical pain and psychological difficulties that, in State Farm's view, Ms. Leary has no specialized training to evaluate.

It is true that Ms. Leary is not a psychologist or a medical doctor. However, based on her training, experience and qualifications, I find that she has acquired sufficient special or particular knowledge to make her an expert in the field of vocational assessments and rehabilitation. This may involve evaluating whether or not someone is able to engage in work related activity. In doing so, I am mindful that Ms. Leary had an opportunity to observe Mrs. Sivananthan over a period of three consecutive days. In addition, her report was reviewed and signed by a psychologist. Accordingly, I allow Ms. Leary's report to stand as expert evidence. I note State Farm’s objections, and they influence the weight I give to this report.

Ms. Leary's report goes through Mrs. Sivananthan's Background Information and Employment History. Under the heading Behavioural Observations, Ms. Leary indicates that Mrs. Sivananthan had difficulties with punctuality, using elevators and being in the testing room with the door closed. She noted Mrs. Sivananthan's cooperative nature, genuine effort and pain behaviours. She based these observations on Mrs. Sivananthan's history, as well as observations over three days of testing. After listing the tests administered, she listed the test results. For example, on the Work Sample assessment, Ms. Leary stated at page 5 that Mrs. Sivananthan worked with excellent accuracy and met the criteria for success on two entry level tasks.

She listed the following as Mrs. Sivananthan's Vocational Assets at page 7:

competitive assessment profile, comparable to the profiles of individuals in the mid to upper third of the population, exclusive of the top ten percent
over 25 years of experience working in clerical roles
has high school diploma
Computerized Office Skills Training certificate
computer literate
follows directions well
polite and cooperative
presents well
accurate work style
fluent in Tamil

She listed the following as Mrs. Sivananthan’s Barriers to Employment:

physical limitations; cannot stand, sit or walk for prolonged periods, or perform lifting or repetitive movements due to injuries suffered in a MVA
experiencing symptoms of anxiety and claustrophobia
required frequent breaks
complained of headaches and dizziness
diagnosed with, and exhibiting symptoms of Depression
unreliable punctuality
has been unable to attend or complete job interviews
difficulty commuting independently due to anxiety
can not ride elevators alone
low confidence and self-esteem
dependent on husband for support in basic daily activities

Ms. Leary concludes in her report that:

Savithiri’s test results show an aptitude profile well within the average range. Her academic skills and intellectual abilities are at a similar level. However, due to apparent psychological and physical limitations, Savithiri is best described as prevocational; she is currently unable to participate in training or competitive employment due to the sequelae of a motor vehicle accident.

Ms. Leary then concluded with a list of Recommendations designed to improve Mrs. Sivananthan’s functioning, including cognitive behavioural therapy, a support group, work hardening and workshops or counselling. Once Mrs. Sivananthan was ready to work, Ms. Leary made an additional list of steps to be considered. These Recommendations and additional steps are set out earlier in this decision under my discussion of Dr. Gaur's evidence.

In her testimony, Ms. Leary stated that Mrs. Sivananthan was not able to engage in work related activity right now. Before she could look at gaining employment, Ms. Leary stated that Mrs. Sivananthan needs to have her symptoms of anxiety and claustrophobia addressed, so she can deal effectively with them on a day-to-day basis. In addition, she noted that Mrs. Sivananthan’s pain was not effectively managed, and that she had been out of the workforce since 1999.

When Ms. Leary told Mrs. Sivananthan her conclusion, Mrs. Sivananthan again said she really did want to go back to work. Mrs. Sivananthan was disappointed that she would need to do more work and get more help before she realistically could consider employment.

State Farm invited me to give little or no weight to Ms. Leary’s report and testimony for several reasons. I do not agree. My reasons are set out below.

First, State Farm objected to Ms. Leary making opinions based on her observations of "apparent psychological and physical limitations" which, in State Farm's opinion, she had no training to measure. However, as set out above, I find that Ms. Leary is an expert in the area of vocational assessment and rehabilitation. As such, she is entitled to make opinions based on her observations, which took place over three days. In addition, her report was reviewed and signed off by a psychologist who oversees her work. Although she has no specific college or university training in biology or anatomy, she has taken a university level course in Behavioural Psychology.

State Farm also questioned Ms. Leary's credibility because she did not mention in her report that Mrs. Sivananthan had been assisting her husband with a newspaper route. However, Ms. Leary stated that she did not mention it because it was not relevant. Mrs. Sivananthan was only assisting her husband, and was not responsible for mistakes. So she was not working in a competitive environment. In addition, Mrs. Sivananthan was not being paid for this work, and it was far below her pre-accident level of employment.

State Farm was also concerned that Ms. Leary did not consider whether Mrs. Sivananthan was employable in a home setting. However, Ms. Leary said that before Mrs. Sivananthan could be employable from home, she would have to be able to participate in a job interview. She did not think that Mrs. Sivananthan could successfully participate in a job interview that would result in a job. Furthermore, State Farm did not provide any evidence that there were any jobs available that she could do from home, given that she did not have a computer.

State Farm also wondered why Ms. Leary had only quoted from professionals who had similar opinions. Ms. Leary stated that because it was her opinion that Mrs. Sivananthan could not work, she quoted professionals who had similar opinions. She disagreed with Dr. Gaur's opinion that Mrs. Sivananthan could go back to work because Dr. Gaur is not an expert in employment. Similarly in the case of Dr. Woolford, who states "I feel the patient is fit for a return to work"⁵⁹, Ms. Leary stated that this report only spoke to Mrs. Sivananthan's physical condition. She would not expect an orthopaedic surgeon to make comments on psychological conditions.

Finally, State Farm alleged that Ms. Leary was biased since she had been retained by Mrs. Sivananthan's counsel. Since Ms. Leary is a salaried employee of a non-profit organization, I do not see any valid basis for an allegation of bias. Accordingly, I find that Ms. Leary was an impartial witness, with expertise in vocational assessment, who had an opportunity to observe Mrs. Sivananthan over three days of employment testing. I give her report and testimony significant weight, given these circumstances.

Causation

State Farm submitted that there was inadequate evidence to conclude that Mrs. Sivananthan’s psychological symptoms arose as a result of the motor vehicle accident. It took the position that Mrs. Sivananthan’s symptoms could have been caused by other factors such as her job loss, rather than the accident. I do not agree. I am of the view that there is sufficient evidence to conclude that Mrs. Sivananthan's depression and phobias arose as a result of the motor vehicle accident.

From the credible evidence I heard from Mrs. Sivananthan, I find that prior to the accident Mrs. Sivananthan was rarely without work, and dealt with losing jobs and ending contracts with optimism and confidence.⁶⁰ When she did not find work right away, she enrolled in training.⁶¹

Mrs. Sivananthan had suffered from hypothyroidism prior to the accident. This is a condition which causes fatigue and weight gain. It was treated with medication and did not stop her from working. Therefore, I find that she did not have any pre-existing medical condition which interfered with her ability to work.

Dr. Gaur indicated that depression can just happen. There doesn't have to be a precipitating factor.⁶² But he also indicated that the symptoms of depression don't start right after a motor vehicle accident. It takes some time. Maybe a few weeks to a few months.

Dr. Gaur first noted psychological symptoms after Mrs. Sivananthan lost her job, but he gave the opinion that the job loss was one factor in her depression, and the psychological reactions are common in accident victims.⁶³ He also noted that the loss of a job had never caused her to need psychological help prior to the accident.⁶⁴ If the job loss provoked her symptoms, there is no reason why it would have - other than the vulnerability created by the car accident. Further, according to Dr. Gaur, that she could lose her job was in any event a foreseeable consequence of the accident, and therefore does not break the chain of causation to relieve State Farm of responsibility.⁶⁵

Dr. Gaur also stated that he was not aware of circumstances in the accident which gave rise to Mrs. Sivananthan's complaints of being fearful in elevators and taking subways. He stated that these types of fears can just happen.⁶⁶ However, she had been stuck in elevators before three times prior to the motor vehicle accident, and had not required any sort of medication or medical attention.⁶⁷ In addition, Dr. Gaur stated that "Depression is common, but these panic disorders, claustrophobia, unable to travel in the car, getting jittery, these I do see more in the people who had accidents."⁶⁸

Since there is no evidence that Mrs. Sivananthan had psychological symptoms prior to the accident and, according to Dr. Gaur, it is common for psychological symptoms to develop weeks or months after an accident, I find that Mrs. Sivananthan's psychological symptoms arose as a result of the motor vehicle accident. Her depression may have been exacerbated by her job loss, but her job loss was a foreseeable consequence of the motor vehicle accident.

Credibility

In significant measure, Mrs. Sivananthan's complaints are subjective. Therefore, I must assess her credibility. In order to assess her credibility as a witness, I may evaluate her demeanor, internal inconsistencies in her evidence, contradiction by others, contradiction by documents, and the inherent implausibility of her evidence, given general knowledge of the human condition. If raised, I must also examine allegations of dishonesty or fraud.⁶⁹

I found Mrs. Sivananthan's demeanor throughout a lengthy examination and cross-examination at the hearing to be honest, straightforward and sincere. She exhibited a genuine desire to go back to the work that she had enjoyed prior to the accident.

State Farm tried to impugn Mrs. Sivananthan's credibility by raising various inconsistencies. For example, Mrs. Sivananthan testified that she was told by Dr. Gaur in April or May 2000 that she was not ready to work. On the other hand, Dr. Guar testified that his approach to treating patients was to encourage them to work, but there was no specific statement contradicting her. In this case, I accept Mrs. Sivananthan's contention that her recollection back to 2000 is not that great, which supports her case that her memory is not as good as it was prior to the accident.

State Farm also raised the fact that in a questionnaire filled out by Dr. Kwok, Mrs. Sivananthan stated that "I can drive my car as long as I want with moderate pain in my neck." However, Mrs. Sivananthan indicated that Dr. Kwok started asking questions and filling out the report before the interpreter got there, which led to communication difficulties.

State Farm also noted that in Mrs. Sivananthan's Employment Insurance ("EI") file, she had stated in October 2000 that she was prepared to work. But I accept that Mrs. Sivananthan may not have realized the severity of her psychological complaints at that time. Originally, she made a claim to EI for sick benefits. Later, she transferred to a claim for regular benefits because she wanted job search help. State Farm also noted that in October 2000, she told EI that she could take a bus to work. However, she did not notice her problem with taking buses until after that date. Her first interview had been in August 2000, and her daughter had driven her there.

State Farm maintains that if Mrs. Sivananthan had not been able to work, one would have expected that Mrs. Sivananthan would have pursued her claim for benefits more diligently. However, I find that the evidence shows that Mrs. Sivananthan wanted to work, and initially thought she could work. I find that this adequately explains any delay by Mrs. Sivananthan in pursuing her claim.

State Farm alleges that Mrs. Sivananthan attempted to conceal her work on a volunteer basis helping her husband deliver newspapers. Since she was not earning remuneration, but rather attempting to get out of the apartment, as recommended by Dr. Rajendra, I do not find that this affected her credibility. In addition, I do not attach any significant value to this work, since her mistakes ended up costing her husband money.

State Farm introduced some other evidence with respect to Mrs. Sivananthan's credibility. At the hearing, State Farm filed evidence indicating that some prescription receipts may have been paid for by both State Farm and Great-West Life, her husband's collateral insurer.

Mrs. Sivananthan did not object to the introduction of this surprise evidence because her counsel agreed it was relevant to the issue of Mrs. Sivananthan's credibility. When presented with the possibility that the receipts had been double-paid, Mrs. Sivananthan indicated that she was unaware of the fact, as her husband took charge of submitting receipts to Great-West Life, and admitted there may have been a mix-up. She also indicated that if there had been an overpayment, she was willing to repay the money.⁷⁰

State Farm challenges the credibility of Mrs. Sivananthan's description of the severity of her problems. The impressions of others with whom she came in contact is helpful. Dr.Young put Mrs. Sivananthan through an extensive battery of psychological tests.⁷¹ The validity scores on all of these tests were normal. He stated that there was no reason to believe that she was exaggerating.⁷² In fact, Dr. Young found Mrs. Sivananthan to have a "refreshingly" positive attitude. She wanted to go back to work and she thought that the best thing she could do was to go back to work...."⁷³

Dr. Gaur described her as a "very responsible patient" who followed his advice.⁷⁴ Ms. Leary felt that Mrs. Sivananthan "gave very genuine effort. She was very motivated to do well."⁷⁵She noted that the applicant "felt disappointed ... it seemed like a bit of a letdown for her" when Ms. Leary informed her of her opinion that she needed more help before she would realistically be able to return to work.⁷⁶

The medical reports provided by Dr. Gaur and Dr. Young said that Mrs. Sivananthan could work. However, their oral testimony modified this assertion. Dr. Gaur testified that Mrs. Sivananthan needed to complete the Recommendations set out in the Vocational Assessment. Dr. Young stated that Mrs. Sivananthan could return to part-time work.

Mrs. Sivananthan's counsel submitted that Mrs. Sivananthan was very recovery oriented, and not at all litigious. I agree. I find that her attitude led her to tell her doctors that she wanted to work, and felt ready to work. Under all these circumstances, I find her evidence plausible, believable and credible. As a result, I accept as findings of fact that she suffers from anxiety, a panic disorder, severe claustrophobia and chronic pain.

Mitigation

State Farm argues that Mrs. Sivananthan failed to mitigate or reduce her damages by seeking treatment for her psychological difficulties earlier. In his cross-examination of witnesses, State Farm’s counsel emphasized that Mrs. Sivananthan had not provided State Farm with evidence of her psychological disability, and found fault with her failure to continue to inform State Farm of her difficulties after they had terminated benefits.

After the DAC report in May 2000, Mrs. Sivananthan stated that she looked ahead, to a return to the workforce. She testified that she went for a job interview in August 2000,⁷⁷ that she took the initiative and recruited the assistance of EI in her job search and was enrolled in a wage subsidy program.⁷⁸ She also contacted the employment agencies through whom she had previously obtained employment for their help.⁷⁹ All of this was to no avail.

Unable to find a job, Mrs. Sivananthan began helping her husband with his newspaper route. Dr. Gaur gave evidence that this activity was therapeutic for her.⁸⁰

As State Farm agreed, in the several months immediately after the accident Mrs. Sivananthan’s main focus was clearly on her physical symptoms of pain and how to resolve them.⁸¹ Mrs. Sivananthan states, and I accept, that it was only with the improvement of those symptoms that the psychological issues came to the forefront.

Dr. Guar provided a reasonable explanation for Mrs. Sivananthan’s behaviour. He gave evidence that mental illness, and in particular seeing a psychiatrist, has a significant social stigma in the South Asian community - "...anything related to psychiatry is not considered good. It’s sort of a bad name."⁸² Dr. Young testified that it is "quite common" for psychological problems [to be] seen more as a character flaw than an illness."

Although she appeared to downplay the significance of her phobias during her clinical interview with Dr. Young,⁸³ and was more preoccupied with pain on direct questioning through the psychological surveys, Mrs. Sivananthan scored more than two standard deviations above the normal on the phobia scales - higher than her pain (somatization) scores.⁸⁴ Mrs. Sivananthan submits that this underplaying of her phobias in the interview is consistent with her seeing her phobias as character flaws that she would 'get over once her pain lessened.

Mrs. Sivananthan states that her underestimation of her difficulties, however, did not prevent her from seeking and complying with treatment. She reported her phobias to her physiotherapist on February 10, 2000,⁸⁵who suggested she contact a psychologist. Although Mrs. Sivananthan states that she did not remember that suggestion,⁸⁶ Mrs. Sivananthan reported her symptoms to her family doctor sometime before April 3, 2000, when Dr. Gaur noted she "still" felt scared of elevators and was depressed.⁸⁷

Mrs. Sivananthan has taken the medication prescribed for her symptoms. When hospital staff workers told her in August 2000 she needed treatment for her symptoms, she asked for a referral to a psychiatrist. Her psychiatrist confirms in his report of August 30, 2002 that she "has been complying with treatment,"⁸⁸ which included behavioural therapy⁸⁹ and medication. Neither Dr. Gaur nor Dr. Rajendra referred her to a psychologist. While Mrs. Sivananthan might have made greater improvement if she had been referred to additional treatments, I find that Mrs. Sivananthan sought and complied with medical treatment prescribed by her doctor and specialist, and did everything within her knowledge to enhance her recovery.

She even tried to move to a first floor apartment, but stated that she has not been financially able to do so.⁹⁰ State Farm suggested it was Mrs. Sivananthan's duty to find a job where elevators were not a factor. But that is extremely difficult when she lives on the eighth floor, and there is no doorman in the building. State Farm also suggested that Mrs. Sivananthan should attempt to work from home, but provided no evidence as to how this would be possible, nor did it provide any assistance in this regard.

State Farm also contends that her symptoms lacked severity because Mrs. Sivananthan never submitted a treatment plan to address her psychological symptoms. However, I find that a treatment plan was unnecessary in this case, as her treating doctors, Dr. Gaur and Dr. Rajendra, were covered by OHIP.

The "own occupation period" up to October 28, 2001

During the period from June 15, 2000 to October 28, 2001, Mrs. Sivananthan must prove that she suffered a substantial inability to perform the essential tasks of her employment. To decide whether she meets this test, I must determine what were the essential tasks of her employment. Based on the credible evidence I received from her, I find that the essential tasks of her employment at the time of the accident were clerical in nature. I find that they included the ability to work away from her residence and therefore included travel. I also find that they included the ability to arrive at work punctually and reliably, and to work full-time, for example, approximately eight hours per day, five days per week.

In Flemming and Wawanesa Mutual Insurance,⁹¹ Arbitrator Naylor noted:

... the fact that the Application is able to perform some functions of her occupation on a part-time basis does not address the standard of disability set out in the regulations ... In determining an applicant's ability to perform his or her essential occupational tasks, the demands of such tasks cannot be evaluated in isolation from the broader employment context .

The regulations contemplate inability to perform the duties of remunerative work. The performance of essential tasks must incorporate the ability to perform such tasks in a manner, at a speed or for a time that renders such performance capable of being remunerative.⁹² [emphasis in original]

This has been confirmed in other cases, such as Soos and Canadian Surety Company,⁹³ in which Arbitrator Novick stated:

The focus of the inquiry must be on the applicant’s ability to perform the essential tasks of her job as opposed to whether or not certain tasks could be performed on a part-time basis.⁹⁴

Mrs. Sivananthan’s family doctor, Dr. Gaur, stated in his report dated July 22, 2002 that Mrs. Sivananthan was only "capable of returning to a suitable employment considering her ...present disability." At the hearing, Dr. Gaur clarified his opinion, stating that, while he does not believe Mrs. Sivananthan to be permanently disabled,⁹⁵ he also is of the opinion that Mrs. Sivananthan is not currently able to hold down a clerical job.⁹⁶ In his opinion, a full-time job will be almost impossible at this stage with her present medicines, back and mind situation.⁹⁷

The DAC psychologist, Dr. Young, stated that on May 17, 2000, Mrs. Sivananthan’s chronic pain complaints alone disabled her from working more than part-time,⁹⁸ and that she would require "proper supports and proper medication"⁹⁹ in order to progressively regain the capacity to work full-time. By "proper medication" Dr. Young meant medications, dosages, and desensitization therapy that were not part of Mrs. Sivananthan’s actual treatment.¹⁰⁰

Dr. Rajendra, Mrs. Sivananthan’s treating psychiatrist, stated in his report of August 30, 2002 that "with vocational rehabilitation she could try to return back to work."¹⁰¹ I find that Mrs. Sivananthan required vocational rehabilitation before even making the attempt to return back to work.

When Dr. Rajendra recommended vocational rehabilitation, Mrs. Sivananthan's counsel sent her to Ms. Leary. Ms. Leary noted Mrs. Sivananthan's barriers to employment included demonstrating symptoms of anxiety and claustrophobia, and unreliable punctuality because of her transportation difficulties.¹⁰² She also demonstrated pain behaviours.¹⁰³ Ms. Leary testified that, based on her experience with and testing of Mrs. Sivananthan, she is not able to engage in competitive employment.¹⁰⁴

State Farm alleges that there is no credible medical opinion to support Mrs. Sivananthan's claim for ongoing income replacement benefits. It is true that there is limited written medical evidence to support Mrs. Sivananthan's claim. I disagree, however, that there is no medical evidence supporting her claim. As set out above, her family doctor, Dr. Gaur, and the Disability DAC psychologist, Dr. Young, both stated at the hearing that she was not ready to return to full-time work. There is also the evidence of the vocational assessor, Ms. Leary, supporting Mrs. Sivananthan's claim for income replacement benefits.

State Farm relies on the case of Johnson and Halifax Insurance Company.¹⁰⁵ In Johnson, Arbitrator Palmer states that in order for an applicant to qualify for further income replacement benefits, it is not sufficient to have some inability to perform the essential tasks of her employment, but there has to be a "substantial inability." If the task can be performed, albeit at a slower pace and with discomfort and with some pain, then the required level of disability is not met. I do not find this case to be very helpful, in that it deals only with physical disabilities. In Mrs. Sivananthan's case, her main problems relate to psychological difficulties. In addition, I find that her combined problems are substantial.

State Farm also contends that the onus of proof is on Mrs. Sivananthan. Accordingly, I have to have a very good reason to either ignore medical evidence, or not require medical evidence when the complaints in issue are so subjective, so remote from the car accident, and where there is concern about Mrs. Sivananthan’s credibility.

I agree that the onus of proof is on the Applicant in this case. However, I find that Mrs. Sivananthan’s has met her onus of proof. I have found Mrs. Sivananthan to be a credible and straightforward witness. Therefore, I give weight to her subjective complaints concerning her physical and psychological difficulties. Dr. Gaur stated that psychological difficulties usually do not arise until some time after a car accident, and I accept his testimony on this issue. Accordingly, I find that Mrs. Sivananthan is entitled to income replacement benefits for the period up to October 28, 2001.

The "any occupation" period after October 28, 2001

To meet this test, Mrs. Sivananthan must prove that she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

Mrs. Sivananthan argues that her impairments make her completely unable to perform her employment duties in the competitive workforce.

She stated that her dependence on others to simply be able to get to work daily makes her ability to do so, at least on time, very unreliable. For example, if she forgot her wallet after getting down the elevator in the morning, she could be hours late for work because she would need to wait until someone was going up to get it, then for someone else to become available to accompany her back down. If she relied on her husband for transportation, then she could be affected every time he was ill or working overtime.

Mrs. Sivananthan submits that a person who is dependent to such a significant extent on support from others simply to fulfill the most basic of employment requirements such as getting to work reliably, and on time, must be considered completely unable to perform the essential tasks of any employment.

Mrs. Sivananthan states that despite her best efforts, she has been unable to carry out any real job search over the last two and a half years. In that time, she has been able to attend about four job interviews, and was able to actually complete only one of these. She submits that the ability to carry out a job search is strong evidence of an ability to perform the essential tasks of employment, for two reasons.

First, because a job search involves basic activities that are common to all jobs. These include the ability to get to the workplace reliably and punctually; the ability to adapt to and problem solve in new situations, and to relate positively to co-workers or customers. Second, because the primary essential task of any job is landing it in the first place.

This interpretation of the essential tasks of employment is reflected in the Commission caselaw. For example, in Pham and State Farm Mutual Automobile Insurance Company,¹⁰⁶ the applicant was found to have physically recovered some months after the accident, but his psychological symptoms prevented him from carrying out a job search until some months after that. Arbitrator Renahan ruled that Mr. Pham was entitled to income replacement benefits during the time he was unable to carry out a job search.¹⁰⁷

The only change in Mrs. Sivananthan’s activities after October 28, 2001 was that she began to help her husband on his newspaper route in September 2002. State Farm argues that these activities are evidence that Mrs. Sivananthan is not completely disabled from engaging in employment "for which she is reasonable suited."

Mrs. Sivananthan states that first, this activity is not employment in any sense of the word. Mrs. Sivananthan is not paid for the work, and indeed her errors result in financial penalties to her husband.¹⁰⁸ She began doing it "to go out and help."¹⁰⁹ Her husband encouraged her because he thought it would be good for her.¹¹⁰ If Mrs. Sivananthan were not to accompany him, her husband would have to do the route himself and would not suffer any change in pay.¹¹¹ Most importantly, Mrs. Sivananthan is unable to perform this work by herself,¹¹² as she cannot drive, cannot deliver in apartments, and may not be able to handle the administrative responsibilities alone. Ms. Leary, the vocational expert witness, testified that these activities were not "relevant to her employment history or activities" because they do not involve "working in a competitive environment."¹¹³

Furthermore, the paper route is a part-time job, which takes 2.5 to 5 hours daily, including commuting time.¹¹⁴

The phrase "complete inability" has been interpreted in Lombardi and State Farm Mutual Automobile Insurance Company.¹¹⁵ In this case, Arbitrator Sampliner states as follows:

I find that "complete inability" does not require the degree of impairment that is as high as a "catastrophic impairment" so as to preclude legitimate claims for ongoing disability, nor so low as a "substantial inability, as that would encourage specious claims after the first 104 weeks.

Arbitrator Palmer also considered the phrase "complete inability" in the case of Terry and Wawanesa Mutual Insurance Company.¹¹⁶ In it she states as follows:

It is not my sense of the test of paragraph 5(2)(b) that the meaning of "complete inability" is that the applicant has to suffer an inability to do more than 50 percent of the job,...Real world jobs should not be broken down into their component parts such that if an applicant is able to do a little more than half of any suitable job, that he should be found to be disentitled from receiving income replacement benefits (and an employer should be obliged to hire him for that job.) As Arbitrator Sampliner pointed out in Lombardi, a literal reading of total disability clauses has been rejected in many previous cases and a literal reading of "complete inability" would mean an insured would have to be unable to perform any function of any job to qualify.

Somehow the ability to engage in a reasonably suitable job, considered as a whole, including reasonable hours and productivity must be addressed. In my view, Mr. Terry has convincingly demonstrated in his attempt at a work trial that he is completely unable to engage in a sedentary job for which I find he was reasonably suited. He would be unable to consistently attend and sustain a reasonable number of hours of employment as a taxi dispatcher or any similar job.

As I stated in Horne and CIBC Insurance,¹¹⁷ I concur with the views of Arbitrators Sampliner¹¹⁸and Palmer on this evolving area of the law. Arbitrator Blackman has indicated in L.F. and State Farm Mutual Automobile Insurance Company,¹¹⁹ that he concurs as well.

In Wigle and Royal, Arbitrator Seife stated that:

If the job is substantially different in nature, status, or remuneration it may not be an appropriate alternative ... one must consider such factors as ... the hours of work and level of remuneration ...¹²⁰

Dr. Gaur noted that "newspaper delivery is much below her level." Even if I found her delivery activities constituted employment activities, which I do not, this is not a job for which she is reasonably suited under the post-104 week test. In addition, I find that her attempts at this work show that she cannot perform even non-competitive work.

This standard means that even if Mrs. Sivananthan is capable of part-time work in a clerical job like those she has worked in all her life, she will not meet the post-104 week test until she is able to graduate up to substantially full-time hours.

Conclusion:

In summary, I find that, despite the efforts Mrs. Sivananthan has made toward recovery from her anxiety, panic disorder, phobias and chronic pain, she continues to suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. Her anxiety, panic disorder and phobias, in particular, have a severely limiting effect on her daily life and prevent her from leaving her apartment, doing her laundry,¹²¹ driving, taking public transportation, using public washrooms, and adapting to new circumstances in everyday life. These impairments prevent her not merely from performing competitive employment, but even from carrying out a job search to any extent required for success. They disable her from arriving reliably to work, being punctual, concentrating on her job tasks, responding competently to stressful situations, dealing appropriately with co-workers and customers, and other basic requirements of any job suitable to her education, training or experience.

Mrs. Sivananthan is motivated, and clearly desires to return to the workforce. She may get the treatment necessary to enable her to do so. Until that occurs, I find that she meets the post 104-week test and is entitled to income replacement benefits from October 28, 2001 and ongoing.

EXPENSES:

I would like to thank the parties for the able assistance they have provided to me.

If the parties cannot agree on the entitlement to, or the amount of the expenses of this proceeding, they may request a date for a hearing on this issue by writing to the Commission within 30 days of the date of this order, in accordance with Rule 79.1 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).

INTEREST:

The parties did not provide any oral or written submissions on the issue of interest. A number of appeal decisions have recently been released regarding interest.¹²² If the parties cannot agree on the issue of entitlement to interest for overdue payment of benefits, pursuant to section 46(2) of the Schedule, they may request a date for a hearing on this issue by writing to the Commission within 30 days of the date of this order.

February 16, 2004

Anne Sone Arbitrator

Date