Orlene West v. RBC General Insurance Company, 2008 ONFSCDRS 160

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 160

FSCO A07-000208

BETWEEN:

ORLENE WEST

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: William J. Renahan

Heard: May 20, 21 and 22, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Owen Elliot for Ms. West

Darrell March for RBC General Insurance Company

Issues:

The Applicant, Orlene West, was injured in a motor vehicle accident on December 5, 2005. She applied for and received statutory accident benefits from RBC General Insurance Company, payable under the Schedule.¹ RBC terminated weekly income replacement benefits and housekeeping benefits on April 3, 2006. The parties were unable to resolve their disputes through mediation, and Ms. West 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. West entitled to an income replacement benefit pursuant to section 4 of the Schedule from April 4, 2006 to December 29, 2006?
Is Ms. West entitled to $10,296.88 for medical services provided by Downsview Health Recovery Centre pursuant to section 14 of the Schedule?
Is Ms. West entitled to housekeeping expenses from April 4, 2006 to October 6, 2006, pursuant to section 22 of the Schedule, and if so, in what amount?
Is Ms. West entitled to payment for the following costs of examinations pursuant to section 24 of the Schedule:

In-home Assessment - $771.54

Job Site Assessment - $1,042.02

Functional Abilities Evaluation - $1,325.20

Is either party entitled to expenses of the arbitration proceeding pursuant to section 282(11) of the Insurance Act?

Result:

Ms. West is not entitled to an income replacement benefit pursuant to section 4 of the Schedule from April 4, 2006 to December 29, 2006.
Ms. West is not entitled to $10,296.88 for medical services provided by Downsview Health Recovery Centre pursuant to section 14 of the Schedule.
Ms. West is not entitled to housekeeping expenses from April 4, 2006 to October 6, 2006.
Ms. West is not entitled to payment for the following costs of examinations pursuant to section 24 of the Schedule:

In-home Assessment - $771.54

Job Site Assessment - $1,042.02

Functional Abilities Evaluation - $1,325.20

If the parties cannot agree on the issue of entitlement to expenses of the arbitration hearing, they may make written submissions. The party seeking expenses has 30 days to serve and file submissions. The responding party has 15 days to serve and file submissions in response.

Ruling:

At the outset of the hearing, Mr. March objected to the inclusion of the amount of $10,296.88 in the issue of medical services rendered by Downsview Health Recovery Centre as the amount that was the subject of mediation was $7,609.44. Section 281(2) of the Insurance Act restricts issues that a person can refer to arbitration to those issues which were mediated and which failed to resolve at mediation. I ruled that since the evidence relevant to the issue of medical services of $7,609.44 was the same or very similar to the evidence relevant to the issue of medical services in the amount of $10,296.88, the issue was the same and that mediation was not required to deal with the same issue.

EVIDENCE AND ANALYSIS:

Background:

Ms. West was 30 years old at the time of the accident on December 5, 2005. She had a four-year old daughter and two sons aged eight and 12 at that time. She worked for two employment agencies which referred her to temporary jobs such as packaging and taking inventory. Ms. West preferred working afternoons or night shifts so that she could prepare her children for school or daycare and take them to the buses which took them to school. Sometimes she declined work so that she could care for her children in the morning and afternoon when they returned from school. In the year of the accident, she worked about 11 weeks and in 2004, she worked about seven weeks. When she could not take her children to the bus stop, a lady in the same building helped, and when she could not meet her children, her cousin picked up her daughter at daycare, and the lady in the building took care of the children until Ms. West arrived home.

The accident occurred on a city street as Ms. West was slowing to make a left hand turn behind a tractor trailer. A vehicle traveling in the same direction in the adjacent lane, drove into the passenger side of her vehicle.

Entitlement to Income Replacement Benefits

Injury:

Ms. West was taken to hospital by ambulance, diagnosed with back and right trapezius strain and released the same day with a few pills. Ten days after the accident, Ms. West attended the hospital because of dizzy spells and fainting. Dr. David Moskovitz saw her and reported:

She was struck on the passenger side and since then has been quite unwell. She mainly describes aches and pains in the shoulder as well as the back and in the neck as well as neck stiffness. She tells me that after the motor vehicle collision she actually had an episode of syncope and passed out in the car but when the paramedics came to see her she was with it. She has four days of just feeling generally dizzy…

Power was 5/5 in the arms and legs bilaterally and sensory examination was grossly normal. Her gait was normal.

I should note that the rest of her functional inquiry was unremarkable. In particular she denied any headaches, visual disturbances or speech abnormalities. There were no focal or global neurological deficits. She denies any vertigo symptoms and just tells me over the last few days she has felt dizzy.

Dr. Moskovitz ordered a CT scan of her head to rule out any potential neurological cause for her symptoms. The results of that scan are not in evidence. Ms. West had normal x-rays of the neck, back, shoulder and chest.

In March 2006, an assessor at an insurer’s Functional Capacity Evaluation reported that Ms. West said that she began to experience dizzy spells, heart palpitations and chest pain in late December 2005. In May 2006, Ms. West described it to another assessor as a panic attack.

The notes of Ms. West’s family doctor indicate that she suffered dizzy spells before the accident. Ms. West said that it was due to pregnancies. I heard no medical evidence or argument connecting Ms. West’s dizzy spells after the accident to the accident.

Ms. West testified that her injuries were pain on the right side, chest pains, mild headaches a couple days after the accident, shoulder pain, upper and lower back pain, pain in the right leg, sore arm, tingling in the left foot and the top of the right foot and stiffening in the right calf. She testified her back pain was worse and that now, except for her back and right foot, she has recovered.

The first mention in the documents of foot problems is contained in an in-home assessment dated May 15, 2006, five months after the accident. The first mention in the documents of post-traumatic headaches is in a treatment plan dated May 25, 2006, again, five months after the accident. The previous month, Ms. West reported that she did not have headaches.

In January 2007, Dr. David Morgenthau reported on the results of an electromyography study. He found no electrophysiological abnormalities. He reported:

Decreased sensation through the right side of the body which includes vibration sense being decreased on the right versus left side of the forehead which is a clear non-organic pattern of sensory change. This type of non-organic pattern of sensory change carries with it a poor prognosis for good recovery.

When Dr. Moskovitz assessed Ms. West two weeks after the accident for her fainting spells, he reported that she had no headaches. In April 2006, Dr. Lianos reported no headaches. However, on May 25, 2006, Dr. Lianos reported for the first time that Ms. West suffered from headaches and he continued to report that she suffered post-traumatic headaches. I heard no reasonable explanation as to how the accident caused headaches five months after the event. Similarly, the first documented complaint relating to the feet is five months after the accident. Again, I do not see the connection between the foot pain and the motor vehicle accident.

Tovah Shoore, M.A., under the supervision of Andrew Shaul, C.Psych., psychologically assessed Ms. West in May 2006 and diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. RBC funded the recommended 6 to 8 counseling sessions. Dr. Lianos reported that Ms. West was told at the hospital that her fainting was due to an anxiety attack. Dr. Morgenthau identified a clear non-organic pattern of sensory change. Dr. Lianos testified that Ms. West suffered from chronic pain syndrome. This is the only evidence I heard that in any way related to a psychological impairment. Even if Ms. West suffers a psychological impairment, I am not satisfied that it is connected to the accident.

Ms. West’s shoulder pain gradually improved and was no longer an issue some time in 2007. Her other complaints, including headaches, feet and arm problems arose several months after the accident and I heard no reliable evidence to connect them to the accident. Ms. West experienced dizziness and fainting before the accident, and I heard no reliable evidence nor any argument that the dizziness and fainting she experienced after the accident were caused by the accident. Ms. West’s most serious complaint since the accident and only consistent complaint is low back pain.

Essential Tasks of Employment:

The test for entitlement to income replacement benefits is whether Ms. West suffered a substantial inability to perform the essential tasks of her employment.

Mr. Elliot proceeded on the basis that the essential tasks of Ms. West’s employment were that of a full-time worker at United Parcel Service in the shipping and receiving department. She stood for an eight-hour day unpacking cell phones and then repackaging them with manuals, pamphlets and accessories. Ms. West had performed this job for three weeks. The testimony and documentary evidence are consistent that Ms. West was employed by two temporary employment agencies as a general labourer. Besides UPS, she worked in the shipping departments of other companies doing similar work as well as stores like Canadian Tire stocking shelves and helping customers. She also worked as a security officer.

At the time of the accident, Ms. West earned $10 per hour. In the year before the accident, she earned $4,472. Therefore, she worked about 11 weeks in the year before the accident. In the previous year, she earned $2,642 for about seven weeks work. She told one assessor that in between jobs she was off work for a few weeks to a few months and that sometimes she declined work if she couldn’t arrange childcare. She preferred working afternoons or nights because it was easier to arrange childcare. She testified that the day job at UPS was very stressful because it took about an hour to get to work, was difficult to get to by public transportation and she had to arrange childcare.

The essential tasks of Ms. West’s employment are therefore the abilities to travel to and from work on public transit for one hour each way and to stand for an eight-hour shift doing light manual work. The assessment also includes a consideration that Ms. West was a temporary worker and worked about 11 weeks a year with weeks or months off between jobs.

Disability:

Although Dr. Lianos certified that Ms. West was substantially disabled from work, he had no knowledge or record of what her work was. He testified that he completed the disability certificates on the basis that he must have known what her work was and that she must have told him that she had difficulty with work.

In May 2006, Dr. Kopansky-Giles, a chiropractor, reported as part of an insurer examination that Ms. West had asked her employer for a temporary placement in February 2006 and that the agency told her that she had to be fully recovered. Ms. West confirmed that she felt 80% recovered at that time. She also testified that she called her boss at UPS to tell her that she would like to try to work. Her boss said she could not come back on a trial basis and that she had to be 100%.

Ms. West testified that she applied for a lot of different jobs involving light work but was not hired. She testified that she was turned down because of her back injury. It is not clear why she applied for work when she told her prospective employer that she could not work because of a back injury. She did not say when she applied. She started a security guard course in 2006. She traveled by bus for about 45 minutes to school where she attended classes three to six hours a day.

The test for entitlement to income replacement benefits for Ms. West does not require that she suffer a complete inability to engage in full-time employment. The test for Ms. West is whether she sustained a substantial inability to engage in temporary, light employment. By her own admission, she thought she was well enough to try this work at the time RBC terminated income replacement benefits. I find no reliable evidence to the contrary. Accordingly, she is not entitled to further income replacement benefits.

Housekeeping:

Ms. West testified that a housekeeper, Otis Anderson, came to do cleaning when she was in the neighborhood. Ms. Anderson submitted invoices for Mondays and Fridays. RBC paid Ms. West’s housekeeping claims until April 4, 2006, a day after it terminated income replacement benefits. Ms. West claims a further six months.

Ms. West felt that she was well enough to try to work around this time. I heard no evidence as to why she could not try to do her housekeeping. Nor did I hear any explanation why Otis Anderson did not testify as to the services she allegedly provided. The evidence regarding housekeeping expenses for the six-month period starting four months after the accident was minimal and not persuasive.

Ms. West’s family doctor sent her to a clinic where she was treated by Dr. Dino Moriana, chiropractor. She attended three or four times a week for more than four months. She then attended Downsview Health Recovery Centre for the next six months. I heard no evidence to explain why she changed service providers or who referred her to Downsview. Downsview’s account for the period is $10,296.88. RBC refused to pay it on the basis of medical opinion supported by DAC assessments.

Ms. West described the treatment she received at Downsview. She said she received treatment for her upper and lower back mostly and massage and back exercises. She did the ball and the string and the treadmill and stretching. She described the effects of the treatment as good and bad and that she improved with the Downsview treatment. She said she went for treatment when she felt she needed it, which was two to three times a week and that a driver picked her up. This is all Ms. West had to say about the treatment she received at Downsview. It was not persuasive.

Dr. Lianos saw Ms. West after she had received more than four months of treatment at another clinic. He testified that if a patient’s pain persists after three months, it is chronic pain. He testified that Ms. West had chronic pain, although he was not able to point to any such specific diagnosis in his records or his disability certificates or treatment plans. He testified that the fact that Ms. West had chronic joint dysfunction meant that she had chronic pain, although he did not testify which joint or joints had this condition. His explanation of how Ms. West developed post-traumatic headaches six months after the accident was that it was reasonable to him. Dr. Lianos testified that he continued to treat Ms. West because she derived benefits. He did not describe the treatment his clinic performed and was unable to describe what treatment he performed.

In his first Disability Certificate dated April 11, 2006, Dr. Lianos certified that the anticipated duration of Ms. West’s disability was 9 to 12 weeks. This was followed by three treatment plans recommending in total 18 weeks of treatment. This was followed by another Disability Certificate dated September 13, 2006 in which Dr. Lianos certified that the anticipated duration of Ms. West’s disability was 9 to 12 weeks. This was followed by another treatment plan recommending six weeks of treatment. This was followed by another Disability Certificate dated December 13, 2006 in which Dr. Lianos certified that the anticipated duration of disability was 9 to 12 weeks. This was followed by another treatment plan for six weeks treatment. The records also include parts of three more Treatment Plans for a total of 18 weeks of treatment extending into 2007.

Dr. Lianos saw Ms. West after she had undergone four months of treatment with little improvement. According to his definition, she suffered chronic pain at that time. Like Ms. West, he provided no detail of the treatment Downsview provided, including the chiropractic treatment he provided. Over the next nine months, he continued to recommend and provide treatment with the continuing expectation that Ms. West’s disability would last only a further 9 to 12 weeks. His treatment did not satisfy his expectations, yet he continued to render treatment. His explanation was that he thought it was reasonable and Ms. West benefited from the treatment.

Ms. West’s recovery did not meet Dr. Lianos’ continuing expectation that her disability would last only 9 to 12 weeks and then another 9 to 12 weeks and so on until nine months had passed. Despite Ms. West’s recovery not meeting his reasonable expectations, Dr. Lianos did not think it was necessary to consult anyone, including Ms. West’s family doctor. He just kept recommending and rendering treatment which did not satisfy his reasonable expectations and at the end of it all, he said she had chronic pain.

It was not clear what treatment Downsview performed. Nor was it clear that Ms. West received any benefit from the treatment. Ms. West’s recovery continued to fail to meet the reasonable expectations of Dr. Lianos. I find that the treatment was not justified, not reasonable and not necessary.

Cost of Examinations:

Section 24 of the Schedule requires an insurer to pay reasonable fees charged by a member of a health profession for a report reasonably required in connection with a benefit claimed. Ms. West claims for three assessments by Century Assessment Centre which were conducted about one month after RBC terminated income replacement benefits and housekeeping expenses. The reports are an In-home Assessment conducted by Dr. Zachary Bain, a chiropractor, a Job Site Analysis conducted by Dr. John Super, a chiropractor, and a Functional Abilities Evaluation conducted by Dr. Super.

The In-home Assessment report repeats and accepts Ms. West’s claims that she cannot do her chores. Dr. Bain concludes that performing housekeeping would hinder Ms. West’s healing without explaining why. The report does not shed any light on Ms. West’s ability to do housekeeping or her need for housekeeping assistance. Dr. Bain does not bring any expertise to the issue and therefore the cost of the In-home Assessment report is not reasonable.

The Job Site Assessment report repeats uncontradicted factual information about Ms. West’s work. The recommendations that Ms. West be instructed in biomechanical and ergonomic efficiency and the effects of sustained posture and that she engage in a work-hardening programme and a conditioning programme do not involve the application of any expert medical or rehabilitation knowledge to Ms. West’s position. The cost of the report, therefore, is not reasonable.

The Functional Abilities Evaluation purports to be a scientific assessment of Ms. West’s ability to function. The assessor found maximum effort in the hands. He concluded that Ms. West could not perform as she did prior to the accident. He recommended further therapy. One month earlier, Ms. West underwent a Functional Abilities Evaluation at a Designated Assessment Centre. The assessor found that Ms. West did not make maximum effort. The assessor did not have sufficient data to make a firm conclusion with regards to effort level. I have no evidence to explain why two similar assessments done about one month apart reach different conclusions as to whether Ms. West made maximum effort. I do not know why Dr. Super performed an assessment one month after the DAC assessment. I am not satisfied that the Functional Abilities Evaluation performed by Dr. Super is more reliable than the one conducted at the Designated Assessment Centre or that the second assessment was reasonable.

EXPENSES:

If the parties cannot agree on the issue of entitlement to expenses of the arbitration proceeding, they may make written submissions to me within 30 days. The responding party shall have a further 15 days to file a response.

September 29, 2008

William J. Renahan

Arbitrator

Date