Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 139

FSCO A04-001740

BETWEEN:

CIDALISA SABINO

Applicant

and

PILOT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Judith Killoran

Heard:

June 28, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Tony Afecto for Ms. Sabino

Joseph Griffiths for Pilot Insurance Company

The Applicant, Cidalisa Sabino, was injured in a motor vehicle accident on December 6, 2002. She applied for and received statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Sabino applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Sabino entitled to receive a weekly income replacement benefit pursuant to section 4 and subparagraph 5(2)(b) of the Schedule from December 17, 2003 and ongoing?
Is Ms. Sabino entitled to receive a medical benefit of $3,974.30 for physiotherapy, chiropractic, massage and rehabilitation treatments from October 20, 2003 to March 3, 2004, claimed pursuant to section 14 of the Schedule?
Is Ms. Sabino entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Is Pilot liable to pay Ms. Sabino's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Ms. Sabino liable to pay Pilot's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

Ms. Sabino is entitled to receive a weekly income replacement benefit from December 17, 2003 and ongoing, pursuant to section 4 and subparagraph 5(2)(b) of the Schedule.
Ms. Sabino is entitled to receive a medical benefit of $3,974.30 for physiotherapy, chiropractic, massage and rehabilitation treatments from October 20, 2003 to March 3, 2004, claimed pursuant to section 14 of the Schedule.
Ms. Sabino is entitled to interest on overdue amounts in accordance with subsection 46(2) of the Schedule.
If the parties cannot agree on the legal expenses of the arbitration hearing, they may apply for an expense hearing before me in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003).

The parties agreed to rely on the documents filed in a joint document brief, together with a supplemental records index, an OHIP summary and a surveillance DVD. The only witness who testified was Ms. Cidalisa Sabino, the applicant.

Income Replacement Benefits - Pre-104 weeks

The pre-104 week test for income replacement benefits is found in section 4 of the Schedule. Entitlement to such benefits requires that Ms. Sabino establish, on a balance of probabilities, that she suffered a substantial inability (which means significant or large and important impairment of ability as established in Commission case law) to perform the essential (major) tasks of her occupation or employment at the time of the accident.

Ms. Sabino was involved in a motor vehicle accident on Friday, December 6, 2002. Ms. Sabino testified that she was born in Portugal on August 6, 1955 and came to Canada in 1989. She worked as a sewing machine operator for 12 years before the accident. The Ambulance Call Report states that the passenger side of her vehicle was hit while she was making a left turn. The report states that Ms. Sabino was ambulatory at the scene but complained of right hip pain and tenderness.²

Ms. Sabino testified that the gear stick hit her right leg during the accident. She was taken by ambulance to Humber River Hospital. She experienced headaches at the hospital and took a taxi home. She was in a lot of pain on her right side from her shoulder to her leg, including her lower back.

Ms. Sabino saw her family physician, Dr. Joana Goncalves, on the Monday following the accident. She complained of major pain on her right side, her right leg, her upper shoulder and around her neck. Ms. Sabino testified that she still suffers from bad headaches. Ms. Sabino claimed that the pain from the accident hindered her ability to work in a continued sitting position.

Pilot raised a causation issue with respect to the accident. It was Pilot's position that Ms. Sabino had a pre-accident atrophy of her leg. Pilot insists that there is no clear causal connection between the accident and Ms. Sabino's right leg problems. Pilot submits that Ms. Sabino had a history of right leg problems. However, Dr. Goncalves stated in her report dated June 14, 2005:

Of interest in this lady's presentation is that prior to this motor vehicle accident she complained periodically of lower back pain associated with heavier tasks and right leg weakness in attempts at toe walking, however she had no real complaints of right leg pain. She was referred to a variety of specialists in an attempt to delineate the reason for her right leg weakness and atrophy involving the calf and reduced reflex on that side, however no diagnosis was made, and no reason was found for her atrophy.

Following the motor vehicle accident she began to display significant reduced function in relation to her lower back and right leg, and began really for the first time, complaining of right leg pain. The pain at times was significant in that it prevented her from sitting for any extended period and thus participating in her work activities as a seamstress. She found it very difficult to drive for any significant period of time.³

The Employer's Confirmation of Income confirms that Ms. Sabino worked until the day before the accident.⁴ There was no sign of deterioration in her work. She appeared to be functioning at a high level just before the accident.

Ms. Sabino's weekly income replacement benefits were terminated as a result of an insurer's examination by Colleen Barnier, kinesiologist, and Dr. John Zeldin, orthopaedic surgeon, on May 28 and 29, 2003. Ms. Barnier noted that Ms. Sabino complained that her right hip pain was constant, dull and deep. She reported that it was aggravated by prolonged sitting, standing and walking.⁵ Dr. Zeldin concluded that Ms. Sabino had some ongoing subjective complaints of discomfort but he did not discern a "significant physical disability."⁶

Ms. Sabino objected that the assessors did not give enough weight to her subjective complaints of pain. She was unable to complete the shelf height lifts and completed only 60% of the standing/walking tolerance due to subjective reports of increased lower back and right shoulder pain, as well as overall fatigue.⁷ The assessment concluded that Ms. Sabino's job was sedentary and she should be capable of returning to it and her activities of normal life. A Notice of Stoppage was sent to Ms. Sabino on June 16, 2003 with a July 4, 2003 effective date.

A Multi-Disciplinary Disability DAC assessment was conducted on August 22, 2003 with an orthopaedic surgeon, Dr. Garson Conn, on August 19, 2003 with Dr. William Longdon, a psychiatrist, and on September 11 and 12, 2003 a Functional Capacity Evaluation with Michelle Kaplan, a physiotherapist.

Dr. Conn found little evidence of any residual musculoskeletal impairment as a result of the accident and found nothing that "should preclude her safe, productive return to her pre-accident seamstress activities."⁸ However, Dr. Conn did find that Ms. Sabino had problems with ankle flexion, curling toes and loss of sensation. He did not conclude that the right leg condition prevented her from going to work.

In the pre-FCE clinical screening, Ms. Sabino had elevated blood pressure which precluded carrying out the FCE.

Dr. Longdon found that Ms. Sabino described symptoms of a post-traumatic stress disorder and a major depressive disorder for 5 or 6 months after the accident. However, he concluded that at the time of his assessment, Ms. Sabino had only minor residual post-traumatic and depressive symptoms which, in his opinion, did not meet the threshold "to constitute a substantial impairment/disability for her seamstress work."⁹

The consensus opinion of the DAC assessors was that Ms. Sabino was not substantially impaired by injury sequelae from the accident in question and was able to perform the essential tasks of her usual pre-accident seamstress occupation from both physical and psychological perspectives.

Ms. Sabino testified about the major duties of her job during the hours of 7 to 4-4:30 p.m. She had only a one-half hour break for lunch. She was paid according to the number of pieces she sewed of men's jackets and shirts. She produced approximately 15-20 pieces an hour. Her machine had 2 foot pedals. The left pedal was used to lift or lower the needle for sewing. The right pedal was used to move the machine. Boxes of pieces were brought to her left side and on her left side all the stuffing and materials to complete the jackets were placed. Although neither the pieces nor the lifting was heavy, Ms. Sabino was required to put the pieces together. She engaged in constant, repetitive movement throughout the day.

Ms. Sabino attempted to return to work in August 2003. Although Ms. Sabino's employer, Apollo Brand Sportswear, provided a graduated return to work, the operation of the sewing machine remained the same. She worked for 4 or 5 days for approximately 3-4 hours. She was unable to continue working due to the intense pain on her right side which increased in severity after working. She also experienced lower back pain, and right leg including ankle pain. She described the pain as being so intense that it was almost impossible to concentrate.

Ms. Sabino testified about the symptoms she experienced after the accident. She had headaches in the back of her head which have improved over time since the accident. She had headaches before the accident but the headaches were much worse after the accident. About a year before the hearing, the headaches had decreased to 1 or 2 times a week. Since the accident, the pain in her neck has worsened. Before the accident, it was mild enough that it was never an issue. The pain in her shoulders was intense after the accident. Now she experiences pain in her lower central back every day, a pain which is always present but decreases if she takes Tylenol. She conceded that she had low back pain before the accident related to work but the level of pain increased dramatically after the accident. Prior to the accident, she had some numbness in the right leg. She had decreasing strength in the right leg but her right leg was much worse after the accident.

Ms. Sabino testified that before the accident, she lived a full life and was capable of working full time. After the accident, she was incapable of operating the sewing machine and she remains incapable. She described how before the accident she could walk normally and afterward, she found that she must hang onto furniture for support. If her right leg is in the wrong position, she may fall. The pain in her right leg is always present and worse during the night. Certain activity, such as prolonged sitting or standing, increases her right leg pain. She can sit for up to one-half hour but must change positions to decrease the pain. She can stand for about 20 minutes before the pain in her right leg begins to increase. She can only walk for one-half hour to 45 minutes before the strength in her leg decreases.

Ms. Sabino has developed sleeping problems since the accident. She takes 1-3 hours to get to sleep. Then she sleeps for only 3 or 4 hours, wakes up and is unable to get back to sleep. She takes Tylenol Extra Strength tablets 2 or 3 times a week. She also takes Paxil 1 hour before bedtime and Resperidol 2 hours before bed. She takes much longer to complete her household tasks.

Ms. Sabino testified about how she has been quite traumatized since the accident. She had a fear of driving and someone had to help her drive again. She claimed that she is unable to do many things and is depressed from not being active. Her style of life changed after the accident as she was afraid of being alone in the house. She began to suffer from panic attacks. She conceded that she had similar problems in January-February 2002 which resulted in her missing 1 week of work. She had no other absences from work in the 3 years preceding the accident.

Ms. Sabino attended sessions with Dr. A. Lorenz, psychologist, and Mr. Robert Gouveia, psychometrist. In their December 8, 2004 report¹⁰, they diagnosed Ms. Sabino with pain disorder associated with psychological factors and a general medical condition, which is chronic. Also, they diagnosed her with an adjustment disorder with mixed anxiety and depressed mood (resolving). These treatment providers described the snowball effect of Ms. Sabino's pain which led to depression and more pain. She was doing the best she could while taking medication but was deeply concerned about not bringing home income.

Conclusion re: pre-104 week income replacement benefits

I find that Ms. Sabino is entitled to pre-104 week income replacement benefits. She meets the test for entitlement in that she suffers from a substantial disability to perform the essential tasks of her employment as a result of injuries she sustained in the accident. It is evident from the medical evidence that Ms. Sabino has reduced reflex and atrophy of the right leg, a condition which has deteriorated significantly since her motor vehicle accident in terms of function and subjective complaints. I find that it was only following the accident that Ms. Sabino began experiencing persistent pain in her right leg.

With respect to causation, Ms. Sabino relied on Athey v. Leonati et al.¹¹ and Levey v. Traders General Insurance Co.¹² In Levey, Arbitrator Evans found that the accident need not be the sole or even the principal cause of disability. Although the applicant's pre-existing disposition may have aggravated her injuries, he found that it was sufficient if the contribution by the accident was more than minimal and made a material contribution to the development of the disability."¹³

Ms. Sabino suffered from right leg and low back pain prior to the accident. However, she functioned at home and at work. On September 7, 2000, Dr. Martin Chepesiuk, neurologist, noted progressive right leg weakness with no pain and no root compression.¹⁴ On November 16, 2000, Dr. Gyl Midroni, a neurologist, commented on a slow deterioration in Ms. Sabino's right leg with no pain.¹⁵ On June 19, 2001, there is a note from Dr. Chepesiuk that there has been no progression.¹⁶ On April 12, 2001, there is a final mention of right leg weakness in Dr. Goncalves' notes.¹⁷

Ms. Sabino was referred to Dr. Pierre Kirwin, consultant in physical medicine, on May 21, 2003 and June 17, 2003.¹⁸ Dr. Kirwin notes that the calf of Ms. Sabino's right leg is 32 cm. less than her left leg. On December 4, 2003, Dr. Kirwin saw her again. He confirmed her ongoing low back pain and prescribed active exercise. Dr. Chepesiuk saw Ms. Sabino after the accident and comments on the right leg pain and weakness.¹⁹ Although Ms. Sabino's pre-accident records were marked by complaints of right leg weakness, there is no mention of right leg pain. Dr. Kirwin comments on the further exacerbation of her right side radiculopathy. On March 4, 2003, Dr. M. Roscoe, orthopaedic surgeon, stated that Ms. Sabino had long-standing pre-accident pain which had been exacerbated by the accident resulting in diffuse tenderness throughout her right hip, knee and ankle.

I am persuaded by the evidence of Ms. Sabino and her physicians, together with the nature of Ms. Sabino's complaints following the accident, that although Ms. Sabino had a pre-existing condition which made her more vulnerable to the effects of the motor vehicle accident, the requisite causal connection has been established. I find that the motor vehicle accident made a material contribution to the development of her disability.

I agree with the ruling in Quattrocchi and State Farm Mutual Automobile Insurance Company²⁰that where "there is no objective evidence of impairment, or the objective evidence does not explain the degree of pain reported by the insured person, the insured person's credibility becomes important." I find Ms. Sabino was an exemplary witness who was entirely consistent and believable in her description of her symptoms and her reduced functional level. Ms. Sabino submitted that Pilot did not acknowledge Ms. Sabino's psychological problems, which included a chronic pain condition. She asked that all of her problems be looked at in their totality. I also agree with Quattrocchi that where an insured "becomes deconditioned and depressed as a result of ongoing pain and disability, thus further delaying recovery," the insured may be found entitled to benefits based on those psychological elements which are secondary to her physical injuries.

Income Replacement Benefits - Post-104 Weeks

Entitlement to post-104 week income replacement benefits is determined by section 5 of the Schedule which imposes a stricter test. The insured must establish a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.²¹ I agree with Arbitrator Sampliner's interpretation in Lombardi and State Farm Mutual Automobile Insurance Company²² that the three categories found in the Schedule of "substantial disability", "complete inability" and "catastrophic impairment" are part of a continuum.

In order to determine the suitable occupations Ms. Sabino must consider under "any employment," I must review Ms. Sabino's education, training and work experience. Ms. Sabino testified that she cannot read, write or speak English. She received little schooling as a young person in Portugal and no job training. She is very concerned about her prospects for future employment. Ms. Sabino submitted that she reacts to pain by not being capable of concentrating on her work. The pain she experienced from the accident made more than a minimal contribution to her problems, particularly given that she had a job which required continual sitting. Ms. Sabino is 50 years old this year, has very little education and has little prospect of being retrained when one looks at the post-104 week test of entitlement.

In a report dated June 14, 2005, Dr. Joana Goncalves, Ms. Sabino's family physician, states that:

Considering the passage of time, we are now about 22 years post accident, it is unlikely that Mrs. Sabino's symptoms and function will improve. She was able to control her symptoms a little more and participate in more ADL's with therapy, but this is no longer being provided by the insurer.

With respect to her return to her previously enjoyed occupation, it is clear that she has a reduced sitting endurance with left [sic] foot weakness, complains of significant pain, and while the signs are there in terms of reduced straight leg raise, reduced reflex and atrophy, no specialist has been able to find the reason for this. Thus there appears to be no surgical solution for her.

The surveillance conducted by Signum Investigations on April 19, 2005 and April 30, 2005²³does not undermine Ms. Sabino's credibility. Rather, the surveillance confirms that she continues to live a fairly sedentary existence. In the surveillance, Ms. Sabino has a visible right limp which appears to cause her pain. She is extremely tentative and careful while walking up and down the short flight of stairs to her house and always holds on to the handrail.

I find that Ms. Sabino meets the test for post-104 week entitlement to income replacement benefits as established by the case law. I prefer Ms. Sabino, Dr. Goncalves, Dr. Lorenz and Dr. Kirwin's evidence to that of the DAC assessors whose conclusions were at odds with some of their findings. Ms. Sabino has established on a balance of probabilities that she has suffered a complete inability to engage in any suitable employment as a result of both physical injuries and psychological complications resulting from the accident.

Medical Benefits - Section 14

Dr. Goncalves, Ms. Sabino's family physician, referred her to Dr. Michael Moreira, a chiropractor, shortly after the accident. For the first 2 months after the accident, Ms. Sabino attended Multi Rehabilitation Services Inc. daily, then reduced her attendance to 3 times a week. She attended for one year until February/March 2005. She received massage, physiotherapy, stretching, treadmill, stationary bicycle, electrodes. Ms. Sabino testified that she received a lot of benefit from the clinic sessions. She testified about the pain relief which resulted from the treatment. Dr. Goncalves believed that the deterioration in her right leg and pain were controlled with the treatments. She attributes the benefits of therapy to reduced sitting pain and decreased right leg weakness.²⁴

Ms. Sabino claims $3,974.30 in medical benefits for physiotherapy, chiropractic, massage and rehabilitation treatments. In evaluating the reasonableness and necessity of treatment and services under section 14, arbitrators have considered the following factors: whether the rehabilitative goals have been met, the subjective benefit of the treatment to the person being treated and whether the treatment relieves pain.²⁵

On March 23, 2003, Pilot rejected a treatment plan dated March 7, 2003 in the amount of $2,330.10 for chiropractic and massage treatment. On May 15, 2003, Pilot did not authorize a treatment plan dated April 28, 2003 for chiropractic and rehabilitation in the amount of $1,188.70 plus $80.00 for the form from Dr. Michael Moreira, a chiropractor. On June 3, 2003, a treatment plan dated May 12, 2003 in the amount of $240 for massage was not authorized because Pilot found it not to be reasonable and necessary. On August 6, 2003, a treatment plan for chiropractic dated July 14, 2003 in the amount of $713.70 was denied by Pilot. On May 26, 2003, a treatment plan completed by Dr. J. Pilowsky dated May 6, 2003 for psychological treatment totalling $1,440 was not authorized by Pilot.²⁶

A Multi-Disciplinary Medical & Rehabilitation DAC assessment was conducted on November 4, 2003 with Dr. L. Goldsmith, a psychologist, on November 7, 2003 with Mr. Trajano Alvarez, a massage therapist, and on November 7, 2003 with Dr. Jake Pringle, a chiropractor. The chiropractor and the massage therapist found the March 7, 2003 treatment plan to be reasonable and necessary. The May 15 and July 14, 2003 treatment plans for chiropractic were found to be not reasonable and necessary. The May 12, 2003 treatment plan for massage therapy was found to be not reasonable and necessary. The May 6, 2003 treatment plan for psychological treatment was found not to be reasonable and necessary.

The Executive Summary of the DAC assessment report dated November 19, 2003 concluded that Ms. Sabino had a pre-existing condition of some atrophy of the right lower leg and a decrease in the Achilles reflex on the right which might suggest nerve root involvement. The assessors did not find that it was related to the motor vehicle accident. The summary also noted that Ms. Sabino met the criteria for a pain disorder associated with psychological factors and a general medical condition. However, the conclusion was that Ms. Sabino's symptoms did not "warrant a diagnosis of major depressive episode or post-traumatic stress disorder (although her presentation includes some symptoms of both of these conditions)."²⁷

A contrary opinion was expressed by Dr. Annette Lorenz, a psychologist, who diagnosed Ms. Sabino as suffering from a pain disorder associated with psychological factors and a general medical condition that was described as being chronic. She was also diagnosed with an adjustment disorder with mixed anxiety and depressed mood.²⁸

The medical/rehabilitation DAC assessment in November 2003 found that 6 months after the accident Ms. Sabino perceived that the treatment she was receiving relieved her pain. I find that Ms. Sabino is entitled to the treatment expenses which she has claimed. Both she and her family physician provided evidence that the treatment helped her to manage pain and maintain function. I prefer their evidence to that of the DAC assessors who tended to minimize Ms. Sabino's subjective complaints. I find that the treatment was reasonable and necessary.

EXPENSES:

I encourage the parties to resolve the issue of expenses. If they are unable to do so, they may apply for an expense hearing before me, in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003).

September 29, 2005

Judith Killoran Arbitrator

Date