Neutral Citation: 2005 ONFSCDRS 23

FSCO A04-000197

BETWEEN:

RAJVIR KAUR GILL

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Lawrence Blackman

Heard:

December 14 and 15, 2004, in Toronto.

Appearances:

Robert Kram for Ms. Gill

Deborah Corcoran for Kingsway General Insurance Company

On September 19, 2001, the Applicant, Ms. Rajvir Kaur Gill, was a front-seat passenger in a vehicle stopped at a red light, when her car was struck in the rear by another vehicle. As a result of the accident, Ms. Gill attended that same day at the office of her family doctor, Dr. T. Saeed, complaining of neck, left shoulder, low back and abdominal pain. She subsequently applied for and received statutory income replacement benefits ("IRBs") of $233 per week from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.¹ Kingsway terminated payment of IRBs on November 7, 2002. The parties were unable to resolve their disputes through mediation and Ms. Gill 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, as agreed by the parties, are as follows:

Is Ms. Gill entitled to receive an income replacement benefit from November 8, 2002 to September 19, 2003, in the agreed weekly amount of $233, claimed pursuant to section 4 of the Schedule?
Is Ms. Gill entitled to interest on any overdue payment of benefits, pursuant to subsection 46(2) of the Schedule?
Is Kingsway liable to pay Ms. Gill’s expenses in respect of the arbitration proceeding pursuant to subsection 282(11) of the Insurance Act?
Is Ms. Gill liable to pay Kingsway's expenses in respect of the arbitration proceeding pursuant to subsection 282(11) of the Insurance Act?

Ms. Gill is entitled to receive a weekly income replacement benefit of $233 from November 8, 2002 to September 19, 2003, together with interest on overdue benefits in accordance with subsection 46(2) of the Schedule.
If the parties cannot agree on the legal expenses of this arbitration proceeding, they may request an appointment for a determination of same in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003).

(a) the statutory test

Ms. Gill claims IRBs subsequent to the termination date of November 7, 2002 up to the two-year anniversary of this accident. Entitlement to such benefits requires that Ms. Gill establish, on a balance of probabilities, that she suffered a substantial inability (meaning significant, or large and important impairment of ability, as established in Commission case law) to perform the essential (i.e., major) tasks of her occupation or employment at the time of this accident.

(b) Ms. Gill's employment

Based on the oral and documentary evidence before me, I find that at the time of this accident Ms. Gill was employed as an assembler with Baylite Specialty Building Products ("Baylite"), a manufacturer of glass inserts for doors, located in Brampton, Ontario. Ms. Gill had been employed with this company for somewhat over two months. Prior to that, she had been employed through an agency at an auto parts company for three or four months.

I find that Ms. Gill's work was physically demanding. She worked a 3:00 p.m. to 11:00 p.m. shift, with two breaks, specifically, a fifteen-minute break at 5:30 p.m. and a half-hour meal break at 8:00 p.m. I find, based on Ms. Gill's oral evidence, that her work required her to stand constantly. I do not accept the evidence of Dr. K. Isles, who performed an insurer's medical examination ("IME") on August 30, 2002, that Ms. Gill was constantly seated while working and was only occasionally required to stand. I found Ms. Gill to be credible. She had, obviously, first hand experience as to what her job entailed. Furthermore, Dr. Isles' assertion regarding sitting versus standing is consistent neither with common sense as to what Ms. Gill's employment duties entailed nor with Dr. Isles' own general understanding of the nature of the position.

I find that the essential duties of her employment required Ms. Gill to stand at a framing table during her assembly line shift. The first step of the assembly line process required Ms. Gill, with the assistance of a co-worker, to pick up a sheet of glass from a machine situated to her side that had washed the glass. The two workers would then place the glass upon the table in front of them. The smaller sheets of glass weighed 25 to 40 lbs., the larger ones, 40 to 60 lbs.

For four hours of her shift, the next step in the assembly line process required Ms. Gill to twist around to her rear and pick up a frame. The other four hours of the shift, her co-worker performed this specific task. The frames were of different sizes. The larger frames would weigh approximately 40 lbs. The individual worker would place the frame onto the glass sheet. The two workers would then put another piece of glass onto the frame.

The two workers would then flip over the glass and the frame. They would then push the frame, with glass on either side, into a steam/press machine. I accept that each operation of affixing the frame between two pieces of glass and moving it on to the next stage of the assembly process was required to take approximately 15 to 20 seconds. I further find that this operation would be repeated some 1,000 to 1,500 times during the course of an eight-hour shift. If the co-worker was not available, Ms. Gill would have to do the entire process on her own.

(c) Substantial Inability

I accept the evidence of both the Applicant’s family doctor, Dr. Saeed, and Dr. B. Sehmi, an orthopaedic surgeon to whom Dr. Saeed referred Ms. Gill, that as a result of this accident, Ms. Gill sustained a neck strain, a low back strain with pain radiating into the right leg and rotator cuff tendinitis in her left shoulder.

As noted, however, by Arbitrator Makepeace in Quattrocchi and State Farm Mutual Automobile Insurance Company (OIC A-006854, September 29, 1997), "pain on its own is not compensable." It is a functional disability, as defined in the Schedule, that may be compensable.

Dr. Saeed, in his disability certificates of October 10, 2001 and November 27, 2002, as well as in his oral testimony, was of the view that Ms. Gill was disabled from her pre-accident employment, although not disabled from very light, sedentary employment. In part, Dr. Saeed’s opinion was based on findings of tenderness and limited range of motion such as left shoulder abduction or rotation and forward bending, but in very large measure, his opinion was based on the Applicant's complaints of pain and his appreciation of the physically demanding nature of her assembly line duties at Baylite.

Ms. Gill conceded that the only medical opinion supporting her disability after November 7, 2002 was that of her family doctor. Dr. Sehmi's brief consultation note of April 17, 2003 following his September 3, 2002 assessment noted only his examination and diagnosis; there was no discussion of Ms. Gill's pre-accident employment or her ability (or inability) to perform the essential tasks thereof. The Applicant conceded a paucity of objective findings in the medical documentation.

Kingsway relied upon, in part, the reports of Dr. Isles and Dr. E. Blackmore, D.C., the latter having conducted a Designated Assessment Centre ("DAC") assessment on November 6, 2002.

Dr. Isles, in her August 30, 2002 assessment, found no evidence of objective physical impairment related to the motor vehicle accident. She concluded that as there was no physical impairment, there was no accident-related disability. Dr. Isles also opined that the usual prognosis for soft tissue injuries is a gradual resolution over the course of two to three months with conservative management. Dr. Isles was of the view that Ms. Gill's complaints were not consistent with soft tissue trauma.

However, as stated in Quattrocchi, "an insured may be found entitled to benefits because of disabling pain, despite there being no objectively confirmable impairment." A person may also be entitled to benefits under the Schedule notwithstanding that their recovery may not take place within, or that one's symptoms may last longer than, the "usual" time frame.

Although Dr. Isles accepted that Ms. Gill appeared to have sustained soft tissue injuries of her neck, left shoulder and lower back as a result of the accident, she opined that "there is no causal relationship between [Ms. Gill's] accident related injuries and current symptom complaints or complaints with respect to functional restrictions." Dr. Isles was of the view that Ms. Gill's pregnancy at the time of the accident might be a complicating factor. Dr. Saeed testified that Ms. Gill’s pregnancy affected her treatment in that x-rays were not conducted, pain and anti-inflammatory medications were restricted and physiotherapy could not be as vigorous, especially given her prior miscarriage.

I adhere to the decision of Athey v. Leonati, (1996), 1996 CanLII 183 (SCC), 140 DLR (4th) 235 (SCO), as followed by Arbitrator Evans in Levey and Traders General Insurance Company (OIC A96-001590, June 30, 1998), that the accident need not be the sole or even the principal cause of the Applicant's condition; rather, it is sufficient if the contribution by the accident was more than minimal and thereby made a material contribution to the development of the insured's condition. I am persuaded, based on the evidence of the Applicant and her treating doctors, the consistency of Ms. Gill's complaints since the accident and the absence of any evidence of any similar complaints pre-accident, that this accident materially contributed to Ms. Gill’s post-accident condition, thereby establishing the requisite causal connection.

I agree with Quattrocchi that "[w]here 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's credibility becomes important," as well as the consistency of the insured's complaints and apparent functional level. I also agree 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 if the arbitrator finds the psychological elements of her condition secondary to the physical injuries sustained.

In his November 28, 2001 IME report, Dr. D. Young, a psychologist, diagnosed Ms. Gill as having an adjustment disorder. He noted the car accident as a contributor to her psychological stress, combined with her pregnancy, the severe illness of her father-in-law and the stresses of raising a one-year old child. Dr. Young noted that a pain syndrome might be developing, although he was unable to make such a diagnosis at that point. Dr. Young was of the view that psychologically, the sooner Ms. Gill returned to work, the better. However, as stated in Quattrocchi, "[w]hether work might be therapeutic is a distinct question from whether the Applicant is substantially disabled from returning to her pre-accident job."

Dr. Saeed testified, within his expertise as a family doctor, that Ms. Gill has had for some time symptoms of depression and a chronic pain syndrome. He has started her on an anti-depressant, Nortriptyline, and has recommended that she see a psychiatrist.

Dr. Blackmore, the DAC chiropractic practitioner, noted in his report Ms. Gill's complaints of non-constant neck and low back pain, aggravated by, amongst other things, lifting and turning respectively. Dr. Blackmore noted that throughout her examination, Ms. Gill displayed pain behaviours such as grasping the examined areas, exclamations of pain and an inability to tolerate movement. This seemed most inconsistent with Dr. Blackmore's statement that Ms. Gill indicated that her pain relief and activity since treatment had begun were "8" and "8-10" respectively, in a zero to ten scale, "10" indicating complete relief or return to activity.

Dr. Blackmore's note that Ms. Gill advised that she was 75% fully recovered also seemed inconsistent with his statement in his report that "Ms. Lim also wrote 'not much - no improvement.'" It was not clear who Ms. Lim might be. Dr. Blackmore also noted having reviewed an October 10, 2001 disability statement from Dr. N. Bath. Counsel were not aware of any Dr. Bath in this matter. There is a disability note of that date, however, from Dr. Saeed.

I find that the inconsistencies in Ms. Gill's purported self reports, rather than representing something untoward in her presentation, were more likely the result of the absence of an interpreter at this assessment, as had been provided for her at earlier assessments, or the medical practitioner confusing data from other assessments, perhaps in a rush to have his 17-page report on the Insurer's desk within 24 hours, following the adjuster's direct telephone conversation with Dr. Blackmore, requesting the report be delivered quickly.

Dr. Blackmore concluded in his report, without giving reasons, that Ms. Gill was not substantially disabled from standing for up to eight hours a day or lifting up to 25 kilograms, with help. He did note the distinct possibility of symptom magnification and/or a pain-focussed behaviour. Dr. Blackmore did not, however, indicate whether he was of the view that Ms. Gill was consciously exaggerating her symptoms for monetary or some other secondary gain, or whether she was truly experiencing the described pain, but that subjective pain was irrelevant.

(c) Conclusion

I am persuaded, on a balance of probabilities, that Ms. Gill has met her own onus in establishing, on a balance of probabilities, that she suffered a substantial inability to perform the essential tasks of her pre-accident employment from November 8, 2002 to September 19, 2003, for the following reasons:

I found Ms. Gill to be credible. Her credibility was challenged neither in cross-examination nor in submissions by the Insurer;
I find, on the evidence before me, that Ms. Gill's complaints have been consistent;
Kingsway obtained an investigation report from an A. Jenkins, which concludes that the accident was a low collision impact (Ms. Gill's vehicle sustaining $767.74 in property damage) of less than eight kilometres per hour, comparable to two people bumping while walking toward each other. The author's qualifications are not provided. I have no basis upon which to qualify A. Jenkins as an expert to allow opinion evidence to be received. In any event, I am not sure I follow as to how a vehicle of some tonnage colliding is comparable to two individuals bumping into each other;
I find that Ms. Gill had a very physically demanding pre-accident job requiring continuous standing and repetitive twisting, bending and lifting within set time frames, which she did not have the discretion to vary;
I accept, as noted by Dr. Isles, Ms. Gill's assertion that her low back, left shoulder and neck pain were aggravated by use;
I accept Dr. Isles' finding that Ms. Gill's heart rate indicated that she "is in a poorer state of cardiorespiratory fitness." Although Dr. Isles stated that Ms. Gill did not demonstrate her full abilities during functional testing, she nonetheless noted that Ms. Gill's "heart rate responses overall are consistent with a fair effort." On testing, Ms. Gill could lift from knuckle to chest, 12 lbs. Dr. Isles notes this specific test as showing somewhat strong to more than very strong exertion, notwithstanding which, the performance could be considered to meet only occasional competitive employment standards. It was, however, a requirement of Ms. Gill's employment that for four hours of her shift she lift frames weighing up to 40 lbs;
I find that Dr. Saeed had greater opportunity to assess Ms. Gill. He testified that he did not find anything inappropriate in her presentation on his examinations. I find that he had a more accurate understanding of the nature of her pre-accident employment. I find that he gave his evidence in a calm, measured and thoughtful manner. I accept his opinion that Ms. Gill's accident-related injuries prevented her from the repetitive, physically demanding assembly line work where the ability to slow down the process did not exist. I was impressed that Dr. Saeed volunteered that Ms. Gill could return to light, sedentary work (which would be relevant to any issue of post 104-week employment);
I was impressed that Ms. Gill tried to return to work on June 30, 2003, endeavouring to perform lighter work on a framing machine. I accept her evidence that she was unable to continue with that work after a day and a half because of low back and left shoulder pain resulting from having to lift from the floor;
I accept Ms. Gill's evidence that she would go back to work if she could, as she needs the employment income, evidenced by her attempt to return to lighter employment at her prior place of employment;
I found it significant that neither Dr. Isles nor Dr. Blackmore addressed whether someone with considerable complaints of pain could perform up to 1,500 operations during each eight-hour shift, five days a week, fifty weeks a year, on a competitive basis. I found it also significant as to how complaints of pain were either ignored by these medical practitioners, or obliquely represented as indicative of something possibly untoward; and,
I was persuaded, on a balance of probabilities, that Ms. Gill's accident-related injuries and the resultant pain, specifically in the requisite repetitive lifting of heavier glass and frames approximately every 20 seconds (or between 1,000 and 1,500 times per shift) caused her to continue to suffer a substantial inability to perform the essential lifting tasks of her immediate pre-accident factory employment at Baylite.

EXPENSES:

If the parties cannot agree on the legal expenses of this arbitration proceeding, they may request an appointment for a determination of same in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003).

March 1, 2005

Lawrence Blackman Arbitrator

Date