Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 202

FSCO A07-001160

BETWEEN:

MICHELE WAGG (JONES)

Applicant

and

ECHELON GENERAL INSURANCE COMPANY

Insurer

Before: Joyce Miller

Heard: April 21 and 23, 2008 in Guelph and May 14 and 15, 2008 at the offices of the Financial Services Commission of Ontario

Appearances: G. William Corby for Ms. Wagg (Jones)

Jamie Pollack and Jason Goodman for Echelon General Insurance Company

Issues:

The Applicant, Michele Wagg, was injured in a motor vehicle accident on December 5, 2004. She applied for and received statutory accident benefits from Echelon General Insurance Company (“Echelon”), payable under the Schedule.¹ Echelon terminated weekly income replacement benefits on June 7, 2005. The parties were unable to resolve their disputes through mediation, and Ms. Wagg 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. Wagg entitled to receive an income replacement benefit in the agreed amount of $318.59 per week, pursuant to section 4 and paragraph 5(2)(b) of the Schedule from June 8, 2005 and ongoing?
Is Ms. Wagg liable to repay Echelon the sum of $1,911.54 in respect of income replacement benefits for the period of April 27 to June 7, 2007 claimed by Echelon together with interest thereon, pursuant to section 47 of the Schedule?
Are either party entitled to their expenses pursuant to subsection 282(11) of the Insurance Act?
Is Ms. Wagg entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

Ms. Wagg is entitled to income replacement benefits in the amount of $318.59 per week pursuant to section 4 and paragraph 5(2)(b) of the Schedule from June 8, 2005 and ongoing.
Ms. Wagg is not required to repay Echelon $1,911.54.
Ms. Wagg is entitled to interest on overdue payment of benefits.
If needed, I may be spoken to on expenses within 30 days of receipt of this decision.

BACKGROUND

Ms. Wagg is 46 years old, married and lives in a rural area called Conn, one and a half hours outside of Guelph. She has two grown children from a previous marriage. Her present husband, Douglas Wagg, who was her fiancé at the time of the accident and who she began to live with right after the accident, is a self employed tractor trailer truck driver.

At the time of her accident, Ms. Wagg was driving Mr. Wagg’s GMC diesel 4 x 4 pick-up truck. She was traveling alone on the highway from Fergus, near where Mr. Wagg lived, back to Guelph, where she lived, when a car traveling in the opposite direction crossed the line and at full speed hit her truck head on.

Mr. Wagg testified that the truck was completely demolished as a result of the impact. He stated that the driver’s side of the roof was crushed down below the steering wheel height. The right front side of the truck was pushed back so far that the front tire was pushed into the door.

Ms. Wagg testified that she lost consciousness on impact and can only remember sitting on the side of the road with people trying to assist her. She was first taken by ambulance to Groves Memorial Community Hospital in Fergus where she was initially treated. She was then transferred by ambulance to Guelph General Hospital.

Ms. Wagg’s immediate complaint was full body pain: this included her head, neck, shoulders, back and legs. Ms. Wagg testified that when she was released from the hospital she went to stay with Mr. Wagg, who took time off from work to look after her.

Ms. Wagg testified that as a result of the accident she has severe headaches, and serious concentration and memory problems. She has difficulty sleeping and is always in constant pain. She cannot sit, stand or walk for any length of time without pain. She stated that after the accident she improved with physiotherapy and massage; however, when the insurance company cut off her benefits in 2006 she regressed to her pre-treatment level of discomfort.

Ms. Wagg testified that, as a result of the accident, she has serious memory problems. She described how she forgets very simple things such as going out and buying a DVD movie she already owns. She stated at first her memory problems had a negative impact on her relationship with Mr. Wagg. For example, she stated that Mr. Wagg would call her from the road and ask her, for example, to check up on an invoice, then when he would come home from work and asked if she had got the invoice, she would not only have forgotten to do it, but she would not have even remembered that he had asked her to do it.

Mr. Wagg confirmed his wife’s testimony. He testified that at first he was angry about things that she either forgot to do or refused to do. For example, he asked Ms. Wagg to monitor the computer for loads that he could pick up after he had made a delivery. This required vigilant nonstop monitoring of the computer. She refused to do this because it was difficult for her to sit in front of the computer for a consistent period of time. As a result he had to come back from deliveries empty. At first this made him angry. It created tension in their relationship. However, over time he came to understand that Ms. Wagg did not refuse arbitrarily but because of her injuries from the accident, he came to realize she could not do many things she was able to do before the accident.

Ms. Wagg submits that as a result of her car accident in 2004, she not only has memory and concentration problems, but she has developed a chronic pain syndrome that substantially disables her from returning to her pre-accident employment. She further submits that her chronic pain syndrome has left her with a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

Echelon submits that any disability that Ms. Wagg suffers, that prevents her from working, is as a result of her serious pre-accident medical condition and not as a result of the car accident of December 2004.

EVIDENCE AND ANALYSIS

Education and Employment History

Ms. Wagg testified that she had finished Grade 11 and half of Grade 12. In addition, she took two computer courses at Conestoga College.

At the time of the accident Ms. Wagg had been working for about 20 years, 27 to 30 hours a week, as a clerk and supervisor at a large retail grocery store called Zehrs . Prior to this job, Ms. Wagg had worked as a cashier and office clerk for an IGA supermarket in Toronto. She has also previously worked in a chicken factory where her job was to fold chicken wings. As well, she worked in a hockey stick factory where she painted the name of the hockey stick on the stick.

At Zehrs, Ms. Wagg worked part time on different shifts – one shift beginning at 6 a.m., another at 2:30 pm. Her duties were different for each shift. Her duties in general required her to put cashier trays weighing 20 lbs. onto a buggy, take these trays to the office where she had to count the money, which were in the thousands of dollars, and record balances on the computer. She had to know the codes for the three safes and bundle the money and put it away. She had to do this work within an hour of starting her 6 a.m. shift because she had to be on the floor to supervise staff.

In addition to supervising the cashiers and packers on the floor, Ms. Wagg had to prepare the schedule for 100 employees who worked different shifts. These employees included the cashiers, packers, office clerks, and the employees of the photo lab. She not only had to schedule their work shifts, but also their lunch hours and breaks.

Ms. Wagg testified that as a result of the accident she could no longer physically do her job. Because she is in constant pain, she can neither sit in front of the computer for any period of time, nor can she stand and walk about for up to 8 hours at a time as was required by the job. Moreover, because of her persistent headaches, memory and concentration problems, she can no longer do the required paper work of the job, i.e., counting and recording money and scheduling employees’ shifts.

Pre-Accident Medical History

Prior to her car accident in 2004, Ms. Wagg had a significant pre-accident medical history. She suffered from depression and sleep disorder as a result of the disintegration of her first marriage. In addition, Ms. Wagg had a significant car accident in April 2003. She was driving her van on a gravel road which was very bumpy. When she applied her brakes in a washed out area of the road, she lost control of the vehicle and ended upside down in a pond. She lost consciousness but was awakened by the water. As a result of this accident, she was off work for approximately five months.

The Disability Certificate dated July 24, 2003 notes that Ms. Wagg suffered memory loss, concussion, whiplash and pain in her back, head, neck and shoulders, in addition to severe headaches. Dr. Brian B. G. Haylock, her family physician of 10 years, prescribed a strong pain killer, Oxycocet, for the headaches which she stated she continued to take on an irregular basis when needed up until the time of the second accident.

The other injuries that Ms. Wagg suffered prior to the 2004 accident was a fall off a ladder at home in 2000, where she injured her back, and in October 2003 she injured her back at work and was off for a short period of time.

The medical evidence also shows that prior to the 2004 accident, Ms. Wagg was taking some very strong narcotics to deal with pain, depression and sleep disturbance. Her medications included: Zoloft, Percocet, Fexeril, Naprosyn, Clonazepam, Demerol, Oxycocet and Celexa.

THE LAW

Sections 4 and 5(2)(b) of Schedule states:

4(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:

The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
The insured person,

i. was not employed at the time of the accident,

ii. was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident,

iii. was 16 years of age or more or was excused from attendance at school under the Education Act at the time of the accident, and

iv. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.

The insured person,

i. was entitled at the time of the accident to start work within one year under a legitimate contract of employment that was made before the accident and that is evidenced in writing, and

ii. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment he or she was entitled to start under the contract.

(2) Despite subsection (1), paragraph 3 of that subsection applies only if the accident occurs before April 15, 2004. O. Reg. 458/03, s. 2.

5(2) The insurer is not required to pay an income replacement benefit,

(b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience;

EVIDENCE & ANALYSIS and FINDINGS

The burden of proof rests with Ms. Wagg. For the period up to December 4, 2006, Ms. Wagg must prove on a balance of probabilities that, as a result of the accident, she suffers a substantial inability to perform the essential tasks of the employment in which she engaged at the time of the accident. For the period after December 4, 2006, Ms. Wagg must prove on a balance of probabilities that, as a result of the accident, she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

For the following reasons, I find that Ms. Wagg has met her burden of proof.

Credibility

Before dealing with the substantive issues, I will first deal with the issue of Ms. Wagg’s credibility, raised by Echelon.

In assessing credibility there are a number of factors that an adjudicator must take into consideration. These include: the demeanour of the witness; whether there are internal inconsistencies in the testimony; whether the witness’ testimony has been contradicted by other evidence; and whether the testimony is plausible.

In addition, where there are inconsistencies and contradictions in the evidence, the adjudicator must decide when weighing and balancing the evidence, whether these inconsistencies and contradictions impugn the substantial and material elements of the claim being made, or are merely minor in nature.

In this case, I do not find that there are any inconsistencies and contradictions that would impugn the substantial and material elements of Ms. Wagg’s claim. For the following reasons I find that Ms. Wagg is a credible witness.

In an Insurer’s Examination of a Functional Abilities Evaluation (“FAE”) performed on March 29, 2005, the report noted that Ms. Wagg gave consistent low physical effort. The report concluded that as a result Ms. Wagg’s performance throughout the testing was not a reasonable reflection of her true maximal functional abilities, and it was probable that the applicant was able to function at a higher level than demonstrated. Echelon implied in its submissions that this went to Ms. Wagg’s credibility as to her true abilities. I disagree.

I accept as reasonable and plausible Ms. Wagg’s explanation that she was told before the testing that if she had any discomfort she should not continue with the test. I note that the FAE report states that in respect to her sub-maximal testing that “No intent is implied on the part of the evaluee.”

I further note that in his testimony Dr. Howard W. Weinberg, an orthopedic surgeon, who performed an Insurer’s Examination on March 2, 2005 stated in respect of his examination that it was his opinion that Ms. Wagg’s responses were appropriate, there was no evidence of exaggerated pain behaviour and no evidence of symptom magnification.² He further testified that from what he observed, he would have expected her to try to perform.

Dr. Weinberg’s opinion is consistent with Dr. Trotter’s evaluation. Dr. J.E. Trotter, a physiatrist, examined Ms. Wagg on June 18, 2007. In her report she stated: “[Ms. Wagg] appeared to have appropriate range of affect. She did not demonstrate excessive pain behavior during the assessment. She was fully co-operative with all aspects of the physical examination.”

Echelon submitted as a means of impugning her credibility that, significantly, Ms. Wagg failed to advise Dr. Weinberg about the medications she was taking before the accident. Dr. Weinberg, however, testified that he only spent 20 minutes taking Ms. Wagg’s history and did not ask her about any medication she was taking. Given the limited time of the interview, I find it unreasonable to shift responsibility on Ms. Wagg to answer a question that was never asked by Dr. Weinberg.

Echelon made much of the fact that Ms. Wagg had deliberately led the assessors wrongly to believe that prior to the 2004 accident she had no health problems, despite the fact that her family doctor’s clinical notes and records showed that she had considerable problems and was taking narcotics to deal with her pain and headaches. I disagree with this assumption.

I accept as reasonable and plausible the explanation that, prior to the 2004 accident whatever medical problems Ms. Wagg had she believed she was fully functioning. She was taking care of her daily needs, she was working on a regular basis of 30 hours a week and every other Sunday³, and she was socializing and engaging in extra-curricular activities with her then fiancé. Accordingly, I accept the explanation that relative to how she is significantly unable to function after the 2004 accident, it is plausible that despite her pre-accident medical problems she could see herself as being functionally healthy before the 2004 accident.

In a neuropsychological report by Dr. Peggy Voorneveld, dated November 7, 2007, Dr. Voorneveld noted: “she was a poor historian, and experienced difficulty in the recall of information.” Echelon, in its submissions, put forward the view that the words “poor historian” could be interpreted to mean that Ms. Wagg was not being honest in describing her history. I do not agree. I take the plausible and reasonable explanation given that when Ms. Wagg was described as being a “poor historian” it did not mean that she was not credible but that she had memory problems and therefore had difficulty in recalling information.

In her report Dr. Voorneveld states: “She … began working at Zehrs, and has continued with work at Zehrs for 23 years, and still remains working there.” Echelon in its submissions acknowledging that this could be a poorly written sentence nevertheless implied that this statement could mean that Ms. Wagg was in fact working at her job at Zehrs at the time of the assessment. I do not accept this latter interpretation. I accept the reasonable and plausible explanation that although Ms. Wagg has not been working since the 2004 accident she is still considered to be an employee of Zehrs . The six family doctor’s notes put into evidence state that Ms. Wagg is unable to work as a result of the motor vehicle accident, supports this explanation.

Accordingly, for all of these reasons, I find that Ms. Wagg was a credible witness.

Medical Evidence

This accident involved a serious head-on collision.⁴ It is important to note that Echelon’s Insurer’s examinations, which cut off her benefits, were conducted within three months of the car accident.

First, I find very little weight can be given to the March 29, 2005 FAE, as it was unable to provide a meaningful conclusion because Ms. Wagg could not perform a number of the assigned tasks due to pain.

Second, in my view, the conclusion of the orthopaedic surgeon, Dr. Weinberg, in his assessment on March 2, 2005, that Ms. Wagg was not substantially disabled from performing the essential tasks of her employment, can be given very little weight. According to Dr. Weinberg’s testimony both his interview and examination of Ms. Wagg totalled forty minutes. He did not have the benefit of her family doctor’s clinical notes and records. In his brief history taking, he did not even canvass what medications, if any, Ms. Wagg was taking at the time of the assessment. He testified that he was not aware that at the time of his examination that Ms. Wagg was still taking Oxycocet, a strong pain killer. He acknowledged that the Oxycocet would certainly have reduced Ms. Wagg’s level of discomfort when he examined her.

I also give little weight to the Disability DAC report which found that Ms. Wagg was not substantially disabled as a result of the December 2004 car accident. I note that the DAC assessment took place in May 2005 before Ms. Wagg’s chronic pain condition was diagnosed.

I find it significant that despite the fact that Ms. Wagg developed a chronic pain syndrome as a result of this accident and was so diagnosed by a Med-Rehab DAC and an Insurer’s Med-Rehab Examination, Echelon did not follow-up with any further insurer’s examination. I note that the pre-hearing letter dated October 17, 2007, stated that Echelon was considering Insurer’s assessments that included “physical assessment by a physiatrist or an orthopaedic surgeon, an FAE and a vocational assessment.” The letter also notes that “The Applicant was agreeable to insurer assessments which are relevant to the issue in dispute.” Although it had the opportunity to make further assessments, Echelon chose not to follow-up with any further assessments.

Ms. Wagg’s principle complaint today is that she is suffering not only from memory and concentration problems but from debilitating chronic pain which she was diagnosed with only after the 2004 accident.

On October 27, 2005, Ms. Wagg underwent a Med-Rehab DAC at The Wellness Rehabilitation Centre. She was seen by a physician, Dr. Catherine Sandor, and a physiotherapist, Dave Wilkinson. After an interview, a physical assessment and reviewing documents provided, the

DAC concluded that, as a result of the December 2004 accident, Ms. Wagg had developed a chronic pain disorder. Mr. Wilkinson concluded that “Further formal physiotherapy will not benefit her at [t]his point and she needs a chronic pain management program.”

Her family doctor referred her to a pain specialist, Dr. Billings, for treatment. Dr. Billings diagnosed her with chronic pain syndrome and treated her with epidural block, epidural injection and nerve blocks. In a consultation dated April 27, 2006, Dr. Billings notes that Ms. Wagg’s “prognosis is guarded and probably poor in the long run.”

On November 29, 2006, Ms. Wagg attended at an Insurer’s Examination with a chiropractor, Dr. Adam Dubler. In allowing part of the treatment plan as being reasonable and necessary, Dr. Dubler concluded that “[Ms. Wagg] is suffering from a chronic pain disorder that is not likely to fully resolve without a multidisciplinary approach that can address all aspects of this condition.”

In November 2007, Ms. Wagg attended for a two-day evaluation with a neuropsychologist, Dr. Voorneveld who confirmed that Ms. Wagg was suffering from a Chronic Pain Disorder. In her report dated November 7, 2007, Dr. Voorneveld made the following conclusions:

Overall, the impression is that while Ms. Wagg may have sustained a post-concussion in the accident event, it is unlikely that she is exhibiting evidence at this time of brain injury sequelae. While she does exhibit a reduction in her mental stamina, cognitive efficiency and productivity, this is viewed as attributable to her ongoing chronic pain, sleep disturbance, and mood disturbance. In this respect the accident in question has resulted in chronic pain issues along with psychological disturbance that has negatively impacted on her day-to-day functioning, including her cognitive efficiency.

Diagnostically, Ms. Wagg is exhibiting evidence of a chronic Pain Disorder associated with both psychological factors and a general medical condition, ongoing driving anxiety, and Adjustment Disorder with mixed anxiety and depressed mood.

With respect to her ability to pursue competitive employment, Ms. Wagg remains with ongoing impairment due to her chronic pain and psychological disturbance that continues to negatively impact on her ability to do so.

In cross-examining Dr. Voorneveld, counsel for Echelon made much of the fact that Ms. Wagg has not had a vocational assessment to see what work she could do. Dr. Voorneveld explained that in her professional opinion there was no need to have a vocational assessment because Ms. Wagg’s chronic pain is a constant regardless of what employment she is asked to do. Succinctly, Ms. Wagg cannot work at any job because of her chronic pain condition.

Causation Issue

Echelon presented very detailed summaries of Ms. Wagg’s significant pre-accident medical problems. Echelon was able to show that Ms. Wagg’s complaints of back pain, headaches, insomnia, and depression as well her taking prescription analgesics for her complaints were exactly the same before December 2004 as they were after this accident. Accordingly, Echelon submits that there was no difference between Ms. Wagg’s pre-accident medical condition and her post-accident medical condition. I disagree.

It is very clear from the evidence that despite injuries to her back from a fall off a ladder and workplace injury as well as a significant 2003 motor vehicle accident, Ms. Wagg was able to return to work after being off for short periods of time to recuperate.

At the time of the 2004 accident despite her medical condition, Ms. Wagg was not only working at her regular job, but having gone through an abusive marriage and divorce, she was getting her life back together. She had established a new relationship and she was engaged in social and extracurricular activities, which included 4 x 4 off-roading, which can be physically taxing.

Significantly, Echelon was not able to point to anything in the medical evidence to show, that prior to the December 2004 accident, Ms. Wagg was suffering from chronic pain syndrome.

As noted above, the first time chronic pain syndrome was diagnosed was in a Med Rehab DAC report dated October 27, 2005. This diagnosis was attributed to the December 2004 car accident.

This diagnosis was further confirmed by an Insurer’s Examination with a chiropractor, on November 29, 2006, which allowed part of treatment plan as being reasonable. As well, Dr. Voorneveld, after two days of testing, in her report dated November 7, 2007, also diagnosed Ms. Wagg with a chronic pain disorder.

On June 18, 2007, Ms. Wagg was seen by the physiatrist, Dr. Trotter. In her report, dated December 21, 2007, Dr. Trotter notes that Ms. Wagg’s “symptoms were becoming quite chronic” and that her present condition is attributable to the December 2004 accident. In her report she states:

Ms. Wagg had a significant motor vehicle accident in 2003 from which she recovered. She has also had a couple of incidences of low back pain n the 2-3 years prior to the index motor vehicle accident. However, at the time of the index accident she was doing her usual activities of daily living and her usual part-time job at Zehrs as well as participating very actively in recreational activities.

Therefore, although these previous injuries may have rendered her somewhat more vulnerable to subsequent injury it is very unlikely, within reasonable medical probability that she would be presenting as she does currently had it not been for the motor vehicle accident of December 5, 2004 which, ergonomically, appears to have been quite a significant one.

Based on the above medical evidence, I would conclude that on a balance of probabilities, as a result of the December 2004 car accident Ms. Wagg developed a disabling chronic pain syndrome that is directly attributable to this car accident.

CONCLUSION

In its submissions, Echelon made much of the fact that neither Ms. Wagg’s family doctor, nor Drs. Voorneveld and Trotter have used the exact wording of the Schedule to conclude that Ms. Wagg could not work at her job or any other job and therefore Ms. Wagg has failed in her burden of proof. I disagree.

The decision as to whether or not Ms. Wagg meets the tests in sections 4 and 5 of the Schedule is a decision that only an arbitrator or a judge can make based on the evidence presented. Whether or not a doctor uses the exact words in the Schedule does not take away from the decision-makers authority to decide whether the applicant has met his or her burden of proof pursuant to the tests in the Schedule.

As noted above, Echelon did not present any evidence to refute Ms. Wagg’s evidence that as a result of the December 2004 car accident she developed a disabling chronic pain syndrome which prevents her from doing any work. I found that the evidence presented by Ms. Wagg, which included both her and her husband’s testimony, (which I found credible), the Med-Rehab DAC and the Med-Rehab Insurer’s examination that confirmed that she is suffering from chronic pain as a result of the accident, the reports and testimony of Drs. Voorneveld and Trotter, her family doctor’s clinical notes and records as well as her family doctor’s six notes stating that she remains disabled from working as a result of the December 2004 car accident, to be sufficient to meet both tests.⁵

Accordingly, for all of these reasons, I find that Ms. Wagg meets both the 104 and post 104 tests of sections 4 and 5 of the Schedule. Accordingly, I find that Ms. Wagg is entitled to an income replacement benefit of $318.59 a week from June 8, 2005 and ongoing. As well, I find that Ms. Wagg is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.

Ms. Wagg, having been successful on the issue of weekly benefits, accordingly is not required to repay Echelon $1,911.54 pursuant to section 47 of the Schedule.

EXPENSES:

If needed, I may be spoken to on the issue of expenses within 30 days of receipt of this decision.

December 23, 2008

Joyce Miller Arbitrator

Date