Neutral Citation: 2010 ONFSCDRS 58 FSCO A09-000114

BETWEEN:

C. C. Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

Before: David Leitch

Heard: December 7, 8 and 10, 2009 and January 7, 8 and 15, 2010 at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on February 11 and 19, 2010.

Appearances: Alexander Voudouris for Ms. C. C. Ian D. Kirby for Economical Mutual Insurance Company

Issues:

The Applicant, Ms. C. C., was injured in a motor vehicle accident on December 5, 2005. She received income replacement benefits (IRBs) from Economical Mutual Insurance Company (“Economical”) until August 10, 2008. The parties were unable to resolve a dispute about her entitlement to IRBs beyond this date, claimed pursuant to section 5(2)(b) of the Schedule.¹ Ms. C. C. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Is Ms. C entitled to IRBs beyond August 10, 2008?
Is the Insurer liable to pay a special award?

Result:

Ms. C is not entitled to IRBs beyond August 10, 2008.
The Insurer is not liable to pay a special award.

Introduction

Section 5(2)(b) of the Schedule reads as follows:

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

(a) …

(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;

In order to be entitled to IRBs under this section after August 10, 2008, Ms. C must establish on the balance of probabilities that she has, as a result of the accident, suffered from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience (“inability or unable to work”). If she cannot establish a causal connection between the accident and her alleged inability to work, then she is not entitled to IRBs even if she can, or could, establish that she was unable to work after August 2008. A causal connection is established if the accident was a contributing or material cause, even if it was not the sole or primary cause.²

In his opening, Ms. C’s counsel acknowledged that Ms. C was diagnosed with fibromyalgia approximately two years prior to her accident of December 2005. However, he maintained that whereas she was able to work prior to the accident, she was unable to work after and as a result of the accident. Several theories of causation were advanced: first, that Ms. C sustained injuries to her back in the accident, second, that the accident exacerbated her fibromyalgia, third, that the fibromyalgia prolonged the effects of her accident injuries and fourth, that she developed a disabling psychological disorder as a result of the accident.

I conclude that a causal connection has not been established on any of these theories and that Ms. C’s claim must fail. There is, therefore, no basis for a special award in relation to the termination of IRBs in August 2008.

During the course of the hearing, I learned about the Insurer’s decisions to terminate and then reinstate benefits prior to August 2008. I invited the parties to present evidence and make submissions as to whether this resulted in the unreasonable withholding of benefits, thus creating a second possible ground for granting a special award. This possibility was raised by me, not Ms. C. Prior to the conclusion of the hearing, I had second thoughts about whether I should have raised this possibility on my own initiative and I gave the parties the opportunity to make submissions on that point. I conclude that I was wrong to have raised the possibility of a special award in relation to the pre-August 2008 termination and reinstatement of benefits.

Background

Born in England in August 1968, Ms. C immigrated to Canada in February 1989. Initially interested in a career as a singer and dancer, she eventually became a registered practical nurse (“RPN”) completing her course and licensing requirement in 1995 and starting to work soon after. She became the mother of three children who were 13, 9 and 5 years old at the time of the accident.

In her evidence-in-chief, Ms. C described her pre-accident health as follows.

She was involved in a motor vehicle accident in July 1998. She was hit from the rear and sustained a “whiplash injury”, resulting in a loss of movement in her neck, and shoulder pain and pain radiating down her arms. She was off work for about six months and her treatment ended in January 1999. She returned to a job as a visiting nurse, a job that was “not as heavy” as her pre-accident nursing job but involved essentially the same duties: “nursing is nursing”, she said.

A second motor vehicle accident occurred in June 2000 when “somebody swiped my back bumper.” She took “the rest of the week off” but then returned to regular duties.

She was off work from January to April 2005. She was “not feeling great” due to pain and depression. Thereafter, she returned to work, eventually at two jobs. She was working between 44 to 60 hours per week at the time of the accident on December 5, 2005.

In the months immediately prior to the accident, Ms. C identified no pressing health concerns. She did receive some acupuncture treatment but only because her doctor had told her that this was a good way to maintain herself and because, for the first time, one of her jobs provided coverage for that kind of treatment. She also noted pain in her arm when she sneezed but only decided to investigate this problem because she mentioned it to a doctor she happened to take her mother to see just before the accident. This doctor suggested that she have an MRI to check for a “tear in the neck.” An MRI was conducted soon after the accident but had been arranged prior to the accident.

Ms. C described the accident on December 5, 2005 as a head-on collision which took place when she and the driver of the other vehicle were leaving their respective coffee shops. She could see that the other driver was not looking where he was going and would hit her so she stopped, put her vehicle into park and blew her horn, all to no avail. She was wearing her seat belt and had lifted her knees up. On impact, “the car rolled a little, that was about it.”

Soon after leaving the scene, she started to experience pain in her lower back and neck. Nonetheless, she continued working, seeing two or three patients that morning. When she reported the incident to her supervisor, she was told to go home. She went to see Dr. Attalla, her family physician, who prescribed physiotherapy and muscle relaxants and recommended that she take the week off work. The day after the accident she was in pain throughout her body. She remained off work for a week and then tried to go back for a couple of days, without success. Since then, she has not returned to work of any kind due to complaints of disabling pain.

Theory 1: Did Ms. C sustain injuries to her neck and lower back in the December 2005 accident?

During the course of her cross-examination, Ms. C gave the following evidence: she experienced much more low back pain after the December 2005 accident than she had before; this pain was due to a herniated disc and a pinched nerve in her lower back; and these injuries were caused by the accident and prevented her from returning to work. She also stated that she has nerve impingements in her neck though she did not specifically allege that these were the result of the accident.

In my view, neither the accident facts nor the medical evidence support a finding that Ms. C sustained injuries to her spine as a result of her 2005 accident.

Ms. C acknowledged that the damage to her vehicle was “very minor.” The post-accident photographs of her vehicle show damage near the front left bumper but this damage is limited to two small areas of broken plastic that are only visible in the close-up photographs.³ Ms. C agreed that she spoke to the other driver following the accident and then drove away without calling either the police or an ambulance.

The medical reports confirm that Ms. C’s spine has undergone changes in recent years. However, they do not support a finding that these changes were caused or contributed to by the 2005 accident.

In September 2001, x-rays of the cervical spine showed mild disc degeneration at C5-6. X-rays taken two years later, in September 2003, showed no changes.⁴ The MRI conducted just after, but not as a result of the accident in December 2005, showed a disc bulge at C5-6 and C6-7 with no cord compression.⁵ Three years later, in November 2008, x-rays showed moderately severe disc space narrowing with minimal encroachment upon the left intervertebral foramen at C5-6.⁶ In June 2009, x-rays of the cervical spine showed disc/ostephyte protrusions with nerve impingements at C5-6 and C6-7.⁷ However, in a report dated October 16, 2009, Dr. Kesava Reddy, a neurologist, stated: “MRI of the cervical spine reveals foramina stenosis at C5-C6 on both sides. Rest of the levels actually look quite good. IMPRESSION: While there may be some component of C6 radiculopathy amongst all of her symptoms the vast majority of her symptoms are unrelated to this and I certainly would not recommend any surgical intervention in her. It certainly is worthwhile keeping her active and participating in any physical activity she can.”⁸

As for the lumbar spine, x-rays taken in February 2008 were normal.⁹ The results of a C.T. Scan conducted in June 2008 were also normal but the L5-S1 disc space was not completely imaged.¹⁰ An MRI of the lumbar spine in May 2009 showed “very early disc protrusion at L5-S1 without evidence of spinal stenosis.¹¹ In July 2009, Dr. Attalla stated: “I don’t think that this can cause severe back pain as there is no stenosis.”¹²

I note that on his first examination of Ms. C on March 1, 2006, Dr. Rehan Dost, a neurologist, noted that she was complaining of pain in the cervical spine but his report to Dr. Attalla said nothing about complaints of lumbar spine pain. It stated:

She reports a several year history of intermittent pain in the cervical spine with radiation to the arms. It is now constant with some burning. Sneezing causes more spasm and pain. At times there are electrical sensations in the arm. She is also having a lot of trouble with her knees.

Impression and recommendations: in summary [C. C.] presents with pain in the cervical spine and arms. Her neurological and electrophysiological examinations are normal. MRI shows minor degenerative changes but nothing to explain her symptoms.¹³

Following his second examination of Ms. C on August 28, 2006, Dr. Dost stated: “I find no neurological explanation for her pain. It is likely musculoskeletal on the basis of fibromyalgia.”¹⁴ In his report to Dr. Attalla, dated June 23, 2006, Dr. Heitzner, a physical medicine and rehabilitation specialist, offered the same explanation for her symptoms: “Overall, this is a young lady with a prior history of fibromyalgia secondary to initial car accident.”¹⁵ Dr. Hanna, a rheumatologist, concluded his report of November 22, 2006 to Dr. Attalla as follows: “This patient has suffered a relapse of generalized fibromyalgia.”¹⁶ The reports of Drs. Hanna and Heitzner are set out in greater detail below. None of these specialists found evidence of injury to Ms. C’s spine.

I acknowledge that in August 2007 and May 2008 Dr. Attalla completed Disability Certificates listing “low back pain” and “neck pain” as “injuries and sequelae that are the direct result of the accident”¹⁷ (my emphasis). However, these Certificates make no reference to injuries to the spine at any level. Like the specialists from whom she had received reports, Dr. Attalla referred only to Ms. C’s “worsening fibromyalgia.” In the face of this evidence, I attach no weight to the December 15, 2008 report of a registered massage therapist which stated: “both her cervical and lumbar pain is [sic] outside the parameters of her overall ‘fibromyalgia’ pain.”¹⁸

I conclude that it is highly unlikely that Ms. C sustained anything more than soft tissue injuries in the accident in 2005. There is no evidence to support a finding that injuries of that kind could, by themselves, have prevented her from returning to work after August 10, 2008. Still, there is no question that whatever injuries Ms. C did sustain were super-imposed on her pre-existing fibromyalgia.

Theory 2: Did the 2005 accident exacerbate Ms. C’s fibromyalgia?

Dr. Hanna’s diagnosis of fibromyalgia is contained in his first report to Dr. Attalla, dated February 24, 2004, written almost two years before the December 2005 accident. It states:

This woman was fit and active, participating in athletic activities prior to an injury in July, 1998. The event occurred when her vehicle was rear-ended as she was stationary (vehicular damage $150). She did walk away with a pain mainly around the neck and attended a local hospital where they found no structural damage. She received some physiotherapy and was able to continue with her part-time job. Nevertheless, the neck pain persisted and by 2001, she had also aching extending down into the arms and fingers, she had frequent headaches, sometimes occurring daily, a disturbed sleep pattern, awakening every 2 hours, tension around the neck and aching even into the low back and legs.

There were numerous fibromyalgia tender points bilaterally at the occiput, lower neck, mid trapezius, median supraspinatus muscle, the lateral epicondyle, sacro-iliac fat-pad, greater trochanter, medial aspect knee, score 16 out of 18.

CONCLUSION: This 35-year-old woman has generalized fibromyalgia that has caused her to feel widespread muscular pain and aching for 5 years, since a minor motor vehicle accident. She has associated headaches, subjective paresthesiae, weather intolerance and sleep deprivation that accompany this condition. The initial whiplash strain should have resolved within months. I see no underlying arthropathy or connective tissue disease. She appears to have a good attitude towards her condition and no underlying psychological stress.

I reviewed with [C] the nature and management of fibromyalgia, a phenomenon of pain and sense dysregulation from a central origin, of uncertain pathogenesis.¹⁹

Dr. Hanna saw Ms. C again approximately a year after the accident. The relevant parts of his second report, dated November 22, 2006, read as follows:

I saw again this 38-year-old woman, an RPN who has documented fibromyalgia. Since I last saw her in February 2004, she complains of diffuse aching throughout the body but the symptoms were not too intense and she was able to manage reasonably well. She was off work from late 2004 until April 2005 and at that time she returned despite the moderate discomfort in the neck and arms. In December 2005 she was unfortunately involved in a motor vehicle accident in which her vehicle was struck from the front but there was little impact (vehicular damage less than $1000.00) and she did not lose consciousness or need to go to the hospital. It was the next day that she noticed more intense aching in the back and this has persisted despite massage and physiotherapy. She continues to have mild headaches and symptoms are worse when the weather is inclement. ...

PHYSICAL EXAMINATION: … She had numerous fibromyalgia tender points bilaterally at the occiput, lower neck, mid-trapezius muscle, median supraspinatus, 2nd costal cartilage, lateral epicondyle, sacroiliac fat pad, greater trochanters, medial aspect knees, score 18/18 …

CONCLUSION: This patient has suffered a relapse of generalized fibromyalgia. I reviewed with her the nature of this pain dysregulation phenomena and it is regrettable that there is no specific treatment … I have warned her the symptom complex is often persistent. She seems to be coping reasonably well despite her discomfort.²⁰

Dr. Heitzner wrote two reports, dated June 23 and July 21, 2006, both to Dr. Attalla. Only the relevant parts of his first report need be referred to. They read as follows:

The main reason for assessment is chronic pain. She was involved in a motor vehicle accident on December 5, 2005. She was the belted driver involved in a head-on crash. No air bags were deployed. She had increased pain to her neck and lower back.

Her history is much more interesting in that, in 1998, she was involved in a motor vehicle accident which mainly affected her neck. She eventually saw Dr. Hanna in 2004 and was diagnosed with fibromyalgia. As time progressed, she did notice pain going down her arms, and she was scheduled for an MRI of her neck on December 17, 2005, regardless of the car accident. … She was receiving acupuncture treatment even prior to the accident because of ongoing arm pain.

Presently, she has a hard time describing her symptoms. They range from aching to sharp, to burning pain. She states that she feels stiffness in her neck all the time. She has a headache to her right frontal region, sharp in nature, but she stated that [it] occurs at variable times, and in variable patterns. She reports pain to the sides of her neck, to her mid trapezial ridge. She also reports sharp pain to her left inner scapula. She reports jumping to her muscles; it could be to her right arm, left arm, calf, right or left. She reports intermittent numbness to her left big toe. Bowel and bladder function remain normal. She does experience sharp, intermittent lower back pain.

Overall, this is a young lady with a prior history of fibromyalgia secondary to initial car accident. She had been working on and off as an RPN for Comcare. She was involved in a second motor vehicle accident. Since that time, she has had an increase in pain. Her pain is very difficult to categorize. It is a combination of both myofascial as well as neurogenic.²¹

I next consider the opinions and comments of Dr. Pierre Kirwin, a physiatrist, who examined Ms. C in March 2008 and July 2009 at the request of her counsel. Dr. Kirwin wrote two reports, together with one addendum to the first report. The first report, dated May 4, 2008, ²² contains a section entitled “Onset of complaints” in which Dr. Kirwin recorded what Ms. C told him about the pain she experienced as a result of fibromyalgia and the periods she experienced this pain. The relevant passage reads as follows:

The complaint of pain with her fibromyalgia is an achiness all over her body [later in the same report, Dr. Kirwin noted: “the fibromyaliga pain involves every single last square inch of her body from head to toe”] which has been occurring intermittently since the 1998 accident (i.e., flare ups from time to time). The last time she had any fibromyalgia pain prior to the accident of December 2005 was June 2005 approximately. She had a flareup of her fibromyalgia diffuse body pains in December 2004 and this complaint of more severe diffuse body pain continued until March 2005 and then she a complete resolution of this diffuse body pain by June 2005 as she recalled that she no longer required to use the voltaren which she was using for her fibromyalgia. There was a general trend of improving severity of diffuse body achiness since 1998 until an apparent resolution of this diffuse body achiness in June 2005. This complaint of diffuse body achiness reappeared in January of 2006. Since the reappearance of this intermittent diffuse body achiness this complaint has been stable with some oscillation of this intermittent pain. This diffuse body achiness is more severe in the wintertime and better in the summertime.²³

In both of his reports, Dr. Kirwin made nine diagnoses. With three exceptions, the nine diagnoses listed in his second report, dated July 29, 2009, are the same as the nine diagnoses listed in his first report. I set out below the nine diagnoses listed in his first report with the three new diagnoses listed in his second report noted below in italics. In his first report, Dr. Kirwin specifically addressed the question of the causal relationship between each of the diagnoses listed and the accident of December 5, 2005. The list below summarizes in bold Dr. Kirwin’s comments on causation but they relate only to the diagnoses listed in his first report as he made no comments on causation in relation to the three new diagnoses listed in his second report:

chronic pain syndrome - appears to be due to the accident
mechanical cervical thoracic and lumbar pain – cervical and thoracic pains existed prior to the accident but exacerbated by the accident - the mechanical back pain appears to be due to the accident

The second report adds the following words: “a component of her cervical and arm complaints is due to the disc osteophyte protrusion over the lower cervical spine and degenerative cervical spondylarthritis noted on the cervical MRI and a component of her lumbar pain and leg complaints is due to the small L5/S1 disc protrusion”

non specific right and left foot arthralgias - right foot uncertain, left foot appears to be due to the accident
a left Achilles tendinosis – uncertain

The second report removes this diagnosis and adds the following diagnosis to the end of the list, thereby changing the numbering in the second list: “left anterior talofibular ligament strain and non specific foot pains and wrist pains”

fibromyalgia - appears to have existed prior to the accident but exacerbated by the accident
bilateral patellofemoral syndrome - appears to be due to the accident
post traumatic migraine and cervicogenic headaches - existed prior to the accident but exacerbated by the accident
bilateral rotator cuff tendinosis - uncertain
non specific numbness of the hands and feet and non-specific hand weakness and diffuse non-specific twitching of the arms and legs - uncertain

The second report refers to twitching of the right leg only

Summarizing the three specialists’ reports described to this point, I note that only Dr. Kirwin expressed the opinion that Ms. C’s fibromyalgia was exacerbated by the accident of December 2005. Dr. Hanna’s first report described fibromyalgia as “a phenomenon of pain and sense dysregulation from a central origin, of uncertain pathogenesis” (my emphasis) and his second report referred only to “a relapse of generalized fibromyalgia”, without specifying a cause. Dr. Heitzner referred to “a prior history of fibromyalgia secondary to initial car accident” (my emphasis) but did not identify the December 2005 accident as the cause of any of Ms. C’s symptoms.

I turn next to the opinion of Dr. David Saul, a medical doctor who examined Ms. C on August 12, 2009, also at the request her counsel. In his report, dated October 11, 2009²⁴, Dr. Saul described his qualifications and his understanding of Ms. C’s background. The relevant passages read as follows:

I have limited my practice to providing consultations and follow-up medical care for patients with Fibromyalgia, Chronic Fatigue Syndrome and Chronic Pain Syndrome. This direction in my practice began in 1992 and I stopped my family practice in 2002. I have treated almost 10,000 patients with FM/CFS and Chronic Pain Syndrome. I have also written a book to guide my patients called “VALIDATION AND HOPE: The Journey Towards Recovery from Fibromyalgia and Chronic Fatigue Syndrome, Highpoint Pub., 1999.” In March 2001 I was chosen to be on the panel of twelve MDs, who all have an expertise in treating FM, to help produce the Nov. 4, 2003, Vol. 11 issue of The Journal of MUSCULOSKELETAL PAIN: The Fibromyalgia Syndrome: A Clinical Case Definition for Practitioners. All 118 pages of the issue are devoted solely to FM. I also attended the 1st International Scientific Forum on Fibromyalgia in Athens Greece, September 18 weekend 2008, chosen as one of 8-10 Canadian experts who treat FM.

This report is in response to your request dated Sept. 29, 2009, to review copies of the reports by: Dr.’s Kirwin, Hanna, Attalla, Israel and to provide an opinion regarding work disability for [C]. The details of the Dec. 5, 2005, MVA are well described in these reports. [C] was well prior to an original 1998 MVA, which resulted in widespread pain of the FM type, 2-3 years later. She had seen Dr. Hanna, Rheumatologist first in Feb. 2004, confirming a diagnosis of FM [fibromyalgia]. [C] was managing reasonably well, despite another minimal impact MVA in 2000. She was off work continuously from Dec. 2004 to April 2005 due to a flare of FM pain symptoms. [C] remained working her full time duties until the Dec. 2005 MVA and has not been able to RTW [return to work] since.²⁵

Dr. Saul’s report went on to state that his “FM tender point examination” produced a score of 18/18, thus confirming his agreement with the diagnosis of fibromyalgia. Then, on page 2 of his report, Dr. Saul referred to the list of diagnoses contained in Dr. Kirwin’s first report. He wrote:

Dr. Kirwin on page 13, lists nine separate, descriptive, [diagnoses] but still essentially connected to the same underlying chronic pain process. The only diagnosis, which has a potential for limiting a successful RTW [return to work] attempt is number five - Fibromyalgia (FM).

As I read these two sentences, it was Dr. Saul’s view that all of the diagnoses identified in Dr. Kirwin’s first report were “essentially connected” to the single underlying chronic pain process of fibromyalgia and that it was fibromyalgia alone that had the potential to limit Ms. C from attempting a successful return to work.

Of course, Dr. Saul only commented on the list of diagnoses in Dr. Kirwin’s first report, not on the three new diagnoses mentioned in Dr. Kerwin’s second report. However, as to the first difference between the two lists, I have already determined that the accident of December 5, 2005 did not cause or contribute to any of the changes in Ms. C’s spine accident or prevent her from returning to work. As to the other two differences, neither Dr. Kirwin nor Dr. Saul offered any opinion on causation, though I consider it likely that Dr. Saul would have regarded any diagnosis referring to non-specific pain as also being “essentially connected” to fibromylagia.

Then, in the next sentence of this same passage, Dr. Saul stated:

Dr. Kirwin provides the opinion farther down on page 13 that much of [C’s] present pain is due to the MVA of Dec. 5, 2005, along with an exacerbation of the pre-existing FM syndrome.

On its face, it is not clear whether Dr. Saul was simply repeating Dr. Kirwin’s opinion or whether he was expressing agreement with it. The possibility that Dr. Saul did not entirely agree with Dr. Kirwin’s opinion is implied later on page 2 when Dr. Saul criticized the report of Dr. J. A. Israel, an Insurer’s examiner. Dr. Israel had suggested that Ms. C had two pre-accident “medical issues”: her 1998 motor vehicle accident and her fibromyalgia. Dr. Saul wrote: “... there are not ‘two’ issues relating to the MVA of 1998, but only ‘one’ – complicated and controversial as it may be – that of FM.” As I read this sentence and the two earlier sentences previously quoted, Dr. Saul attributed all of Ms. C’s complaints of pain to one source: fibromyalgia. It is not, therefore, clear that Dr. Saul agreed with Dr. Kirwin “that much of [C’s] present pain is due to the MVA of Dec. 5, 2005, along with an exacerbation of the pre-existing FM” (my emphasis).

In any event, I cannot read Dr. Saul’s report as expressing agreement with Dr. Kirwin’s view that the accident of December 2005 exacerbated Ms. C’s fibromyalgia. That interpretation of his report is blocked by the last paragraph where Dr. Saul acknowledged, as had Dr. Hanna, that the cause of fibromyalgia is still not known. Dr. Saul wrote:

The 2008, 1,319 page, 4th edition of RAJ’S PRACTICAL MANAGEMENT OF PAIN, now has a 15 page section on FM. From the first two paragraphs in the subsection, Pathogenesis, “The cause of FM is still unknown. Theories regarding its cause have undergone a gradual transition from a psychiatric process, as some still view it, to a muscle disorder, as currently classified in the Medline Index, to a genetically determined central nervous system disorder of chronic widespread allodynia, neuro-endocrine function, and cytokine participation, as it should now be considered. The situation with FMS has changed dramatically in just a few years of concentrated research. Where FMS patients were often viewed as healthy complainers, without any real abnormalities, or considered to be depressed somatizers, the psychiatric model is no longer adequate. Abnormalities in neuro-chemical mediators of central nervous system nociceptive function are clearly present in ways consistent with the patterns of symptoms.”

I acknowledge Dr. Saul’s statement, also previously quoted: “[C] was well prior to an original 1998 MVA, which resulted in widespread pain of the FM type, 2-3 years later” (my emphasis). However, having stated at the end of his report that the cause of fibromyalgia is still unknown, I fail to understand how Dr. Saul could have identified the 1998 accident as the cause of Ms. C’s fibromyalgia. For the same reason, I fail to understand how Dr. Saul’s report can be read as agreeing with or providing support for Dr. Kirwin’s opinion that Ms. C’s 2005 accident exacerbated her fibromyalgia. If the cause of the condition is unknown, it follows that the cause of its exacerbation must also be unknown. While possible causes might be identified, probable causes cannot be.

In summary, as I understand Dr. Saul’s report, it supports three findings: first, that the diagnoses identified by Dr. Kirwin were all “essentially connected” to fibromyalgia; second, that fibromyalgia alone had the potential to limit Ms. C from attempting a successful return to work; and third, that the cause of fibromyalgia is unknown. Relying on Dr. Saul’s significant expertise, I conclude that Ms. C has not established, on the balance of probabilities, that the 2005 accident exacerbated her fibromylagia.

While I thus decide the issue on the basis of what I consider to be the best medical/scientific evidence placed before me, I want to also address the argument that the accident must have exacerbated Ms. C’s fibromyalgia because her condition only deteriorated after the accident.

According to this argument, Ms. C does not need to provide a medical/scientific explanation for her impairment. She need only establish that her impairment was caused or contributed to by the accident and she can do this through what might be called a temporal causal link. The main problem with this type of argument, of course, is that it could be invoked in relation to any disease or disorder of unknown cause that manifested itself soon after a motor vehicle accident. This argument could easily expand SABS coverage well beyond its proper purposes. However, even if applicants can sometimes rely upon this type of argument, in my view, it is not supported by the evidence in this case for the following reasons.

First, Ms. C acknowledged that the damage to her vehicle after the 1998 accident was also “really minor”, costing about $150 to fix. Second, her medical records between 1998 and 2002 were not placed before me or before any of the doctors who examined her after 2002. Third, Dr. Saul said that Ms. C’s fibromyalgia emerged two or three years after the 1998 accident. Dr. Hanna said that she developed fibromyalgia symptoms by 2001. It is entirely possible, therefore, that it was not the 1998 accident but rather some other intervening event or development that caused or contributed to her fibromyalgia. Fourth, Ms. C had a second car accident in the year 2000 but there was no suggestion that this accident caused or exacerbated her fibromyalgia even though she took some time off work. Fifth, Ms. C told Dr. Kirwin that she had a “flare-up” of fibromyalgia just prior to the accident. There was no evidence to explain what may have triggered this flare-up. The December 2005 accident also caused very minor damage to her vehicle. It “rolled a little, that was about it.” Finally, Ms. C told Dr. Kirwin that her fibromyalgia pain did not re-emerge after the December 2005 accident until January 2006.

In my view, this evidence, taken as a whole, does not establish a temporal causal link between Ms. C’s various car accidents and her fibromyalgia.

Theory 3: Did Ms. C’s fibromyalgia prolong the effects of her accident injuries?

Support for this theory can be found in the reports of Dr. J. A. Israel, an orthopaedic specialist, who examined Ms. C on behalf of the Insurer on October 15, 2007 and again on May 2, 2008. The relevant parts of his reports of those dates read, respectively, as follows:

There was a pre-existing motor vehicle accident in 1998 which caused symptoms in her neck and both upper extremities which persisted up until the time of her motor vehicle accident of December 5, 2005. ... This injury was pre-existing and would certainly prolong the disability as a result of the accident of December 5, 2005.

[Ms. C] had a diagnosis of fibromyalgia which Dr. Hanna suggested was widespread muscular aches and pains for a number of years prior to the motor vehicle accident on December 5, 2005.

Both of these conditions could prolong the disability and possibly prevent a return to work.²⁶

There is a pre-existing history of symptoms from a previous motor vehicle accident in 1998. There is also a history of fibromyalgia. These pre-existing conditions would not specifically impact recovery other than they may somewhat prolong the symptomatology.²⁷

However, I have already found it to be highly unlikely that Ms. C sustained anything more than soft tissue injuries in the accident in 2005. These injuries may have prevented her from returning to work soon after the accident but there is no evidence to support a finding that the effects of these injuries persisted and restricted her ability to return to work after August 2008. Thereafter, I accept Dr. Saul’s opinion that fibromyalgia has been both the sole source of Ms. C’s complaints of pain and the only condition that limited her from attempting a successful return to work.

Theory 4: Did Ms. C develop a disabling psychological disorder as a result of the accident?

This theory of causation obviously requires Ms. C to prove that she has suffered from some kind of psychological disorder. She cannot meet this requirement through her diagnosis of fibromyalgia because, as Dr. Saul explained, it has not been established that fibromyalgia has psychological or psychiatric origins. Indeed, for him, “… the psychiatric model is no longer adequate. Abnormalities in neuro-chemical mediators of central nervous system nociceptive function are clearly present in ways consistent with the patterns of symptoms.” Still, Dr. Saul’s report only referred to the diagnoses listed by Dr. Kirwin and this list did not identify any specific psychological diagnosis. The combined reports of Drs. Saul and Kirwin do not, therefore, formally exclude the possibility of a separate or parallel psychological disorder. This possibility was investigated by several psychologists.

Ms. C was first examined by the psychologist Dr. Rod Day at the Insurer’s request on August 29, 2007. His report, dated September 3, 2007, concluded that Ms. C did not meet the criteria for any psychiatric or psychological diagnosis. However, he noted that according to validity indices embedded in the Personality Assessment Inventory (PAI), she showed a tendency to “under-represent” her psychological symptoms. He also noted “an elevated score on the Somatization scale of the PAI.”²⁸

Ms. C was next examined by Dr. Eleni G. Hapidou, a psychologist at the Chedoke Pain Management Centre (CPMC) in late 2007 or early 2008. For some reason, the diagnosis made by this psychologist is not contained in her own report, dated January 21, 2008,²⁹ but rather in the CPMC Discharge Summary, dated January 4, 2008, that she did not sign.³⁰ In any event, she appeared to be the source of the diagnosis “Chronic Pain Disorder Associated with Psychological and Medical Factors.” Like Dr. Day, she noted the presence of “somatization” and Ms. C’s “tendency to minimize symptoms” of a psychological nature.

Ms. C was next seen at the request of her counsel by the psychologist Dr. Joseph R. Garber on February 7 and 19, 2008. His report dated April 9, 2008 provided a diagnosis of “Pain Disorder Associated with Psychological Factors and A General Medical Condition.” It also challenged the opinion of Dr. Day, observing: “While her psychometric profile may be devoid of marked indexes consistent with a diagnosable disorder, the lack of such signs or symptoms can be explained by her inclination to minimize and understate [her psychological symptoms].”³¹

Ms. C was then examined again by Dr. Day on April 24, 2008. In his second report, dated May 1, 2008 and issued on June 6, 2008, ³² he maintained his original opinion and replied to Dr. Garber’s critique. He wrote:

… I do not believe that based on an individual’s tendency to minimize their problems/shortcomings that one can therefore conclude that such an individual is likely to possess a significant psychological condition. Dr. Morey who developed the PAI test clearly indicates that one cannot validly draw that inference. In the interpretive guide to the PAI (Morey, 1996) he indicates that there are at least three possibilities that would lead to a high score on positive impression management as shown by [Ms. C]: One possibility is that these individuals have fewer negative characteristics than most people. A second possibility is that they are deliberately not telling the truth and attempting to deceive the assessor. A third possibility is that they have more faults and symptoms that they are consciously aware. However, whatever the reason, finding evidence of positive impression management does not allow one to conclude that the individual is likely to have a significant psychological condition. Indeed, Morey (1997, p. 130) cites evidence that 30%-40% of the normal (i.e., non-clinical) population shows a tendency to respond with such a pattern of socially desirable responses that would lead to an elevation on the positive impression management scale as demonstrated by [Ms. C] on the PAI. Clearly, one could not argue that all these individuals suffer from a significant psychological condition. In other words, the fact that Ms. C has a tendency to minimize her problems, does not constitute evidence that she therefore has a psychological disorder.

Dr. Day then went on to level his own criticisms of the diagnosis made by Dr. Garber:

Dr. Garber confers the diagnosis of Pain Disorder Associated With Psychological Factors and a General Medical Condition. Among the diagnostic criteria that must be fulfilled to provide this diagnosis according to the DSM-IV is that pain “causes clinically significant distress in social occupational or other important areas of functioning.” In addition, it must be evident that the psychological factors are judged to have an important role in the onset, severity, exacerbation, or maintenance of the pain. Neither in my previous assessments nor in Dr. Garber’s assessment does [Ms. C] report significant psychological distress regarding her pain. Nor does Dr. Garber clearly identify any specific psychological factors that contribute to her pain. Moreover, Dr. Garber does not proffer any findings from psychometric testing that clearly indicate psychological contributants to her pain (as described above the finding that she is prone to positive impression management does not on its own provide such evidence).

I would like to draw particular attention to the following statement in Dr. Garber’s report: “While [Ms. C] did not formally acknowledge the role of psychological factors in the maintenance and perpetuation of her pain related difficulties, she did indirectly allude to its impact by reporting that singing tends to ameliorate her pain”. This statement underlines the point that [Ms. C] does not perceive any psychological issues to be contributory. The fact that she uses singing as a means of coping with her pain is not in my view evidence of psychological factors contributing to her pain but rather is evidence that she has developed proactive strategies to cope with her pain. This is commendable and certainly is not evidence consistent with the presence of a somatoform disorder such as Pain Disorder Associated with Psychological Factors and a General Medical Condition.

Although I carefully read his 52-page report I did not find any specific evidence to support the presence of clinically significant psychological symptoms: She does not report such symptoms in the clinical interview and psychometric testing does not provide any strong evidence for such symptoms.”

Dr. Garber then defended his original diagnosis in two additional reports, dated August 7, 2008 and May 14, 2009.³³ Since the first report contained Dr. Garber’s response to Dr. Day’s critique, it is the more important of the two for present purposes, though it was written without any further examination. The second report was written after a further examination on April 2, 2009 but, as I read it, it provided no new insights or opinions of significance.

Dr. Garber’s August 7, 2008 report stated that on examination in February 2008, Ms. C “manifested blatant behavioural, affective and cognitive signs and symptoms consistent with a Pain Disorder.” At the same time, it noted Ms. C’s inclination to understate any psychological symptoms when subjected to psychometric testing. There was, therefore, what Dr. Garber called a “marked variance” between Ms. C’s “clinical presentation” and her psychological test results. As a result, he said Ms. C presented “a rather challenging conundrum ... an individual who manifests significant difficulties, yet on some psychological testing, denies such difficulties.” He claimed that faced with this “obvious and significant inconsistency”, Dr. Day chose to simply ignore her clinical presentation while erroneously inferring from the absence of psychometric findings the absence of any psychological disorder.

Dr. Garber specifically denied Dr. Day’s allegation that he made the opposite error of inferring a psychological condition from Ms. C’s inclination to under-report her psychological symptoms. On the contrary, he responded, he accepted that given the unreliability of the psychological test results, the only alternative was to rely on Ms. C’s clinical presentation. In his view, both Dr. Day’s clinical findings and his own were inconsistent “with an individual who was devoid of any psychologically-based difficulties.” For him, Ms. C’s clinical presentation was only “consistent with a Pain Disorder.” He also stated: “I found no compelling evidence to suggest that she would have experienced similar difficulties were it not for the accident.”

Dr. Garber’s report did not, however, dismiss the significance of all the psychological test results. In particular, he accepted as reliable the slightly elevated scores both he and Dr. Day obtained on the somatization scale of the Pain Patient Profile. But he noted that Dr. Day compared Ms. C’s score to the “average pain patient” and stated that her score would have been much higher had it been compared to the general community. This, Dr. Garber stated, made it impossible for him to agree with Dr. Day’s comment that Ms. C “continues to cope well with her pain despite her slightly higher score on the Somatization scale.” In Dr. Garber’s view, “the core underpinnings which drive a Somatization phenomenon” are the consistent demonstration of pain behaviour and the denial of psychologically-based difficulties, both of which were present in Ms. C’s case. “In other words”, he concluded, “[Ms. C’s] score on this instrument [the somatization scale of the Pain Patient Profile] is consistent with identified and legitimate pain patients.”

Dr. Garber agreed with Dr. Day that in order for a diagnosis of Pain Disorder to be valid, psychological factors would have to have an important role in the onset, severity, exacerbation or maintenance of the pain. To satisfy this requirement, Dr. Garber pointed to the results of another psychological test, the Survey of Pain Attitudes Scale (SOPA). Ms. C’s results on that test, he said, confirmed her “pervasive inclination to minimize or deny the degree to which psychological phenomena tend to impact on her pain experience.” He went on at page 28:

As a result, I am of the clinical opinion that while [Ms. C] tries to present herself as not suffering from any psychologically-based difficulties, she also tells us that we cannot rely on those findings, given her inclination towards extreme positive impression management.

In essence, what I am suggesting is that there are undoubtedly psychological factors which are not within her conscious awareness which probably have a direct and significant impact on her broad-based psychological and somatic experience.

Dr. Day seems to base his concluding opinion on the fact that [Ms. C] is successfully denying the impact that psychological issues have on her circumstance.

He takes some exception to my interpreting her “singing” as a pain management technique.

I would suggest that if Dr. Day were to give additional consideration to the functional derivatives associated with the act of singing, he would likely recognize that it is very similar to the other types of distraction and deflection techniques which are often core components associated with pain management strategies.

Dr. Garber then summarized his ultimate conclusion as follows:

We all seem to agree that she is experiencing pain. There however remains a significant need to understand that this pain has an origin which is not clearly defined. I am of the opinion that its origin is rooted in a Pain Disorder. Other clinicians have independently echoed similar findings.

At the time Dr. Garber wrote this report, in August 2008, there was, in fact, only one other clinical psychologist who had made the same diagnosis he had. As we have seen, Dr. Hapidou first diagnosed “Chronic Pain Disorder Associated with Psychological and Medical Factors” in January 2008. Nonetheless, in early 2009, a second clinical psychologist, Dr. Deborah Fitzpatrick, diagnosed “Pain Disorder Associated with a General Medical Condition and Psychological Factors (i.e., anxiety which can maintain or exacerbate pain).”³⁴ Dr. Garber was, therefore, ultimately correct in asserting that “other clinicians” agreed with his diagnosis. Accordingly, I was urged to conclude that the weight of opinion supports a finding in Ms. C’s favour.

Had it just been a question of counting heads, I might have accepted that submission. But, of course, it is not just a question of counting heads. I must examine the reports of Drs. Garber, Hapidou and Fitzpatrick to determine whether they established an adequate foundation for the diagnosis they advanced. In my view, they did not.

Dealing first with Dr. Garber, I am unable to understand how Dr. Garber was able to rely principally on Ms. C’s clinical presentation of pain in order to make a psychological diagnosis. In doing so, he appears to have overlooked two possibilities: first, that Ms. C’s clinical presentation was entirely attributable to her confirmed diagnosis of fibromyalgia, as stated by Dr. Saul, and second, that she might have manifested the very same clinical presentation due to fibromyalgia without the accident. In this regard, I note that in his first report, dated April 9, 2008, Dr. Garber “fully acknowledged that fibromyalgia is deemed to be a medical diagnosis and as a result, the specific detail associated with the potential course of this condition is left to my colleagues in Rheumatology, Internal Medicine and Physiatry.”³⁵ Dr. Garber was, effectively, deferring to the opinion of someone like Dr. Saul as, indeed, he should have done.

Likewise, it may be quite right that a consistent demonstration of pain behaviour together with a denial of psychologically-based difficulties constitute “the core underpinnings which drive a Somatization phenomenon.” But Dr. Garber appears to have overlooked the possibility that this same patient profile could be equally consistent with a confirmed diagnosis of fibromyalgia and an absence of any significant psychological symptoms or disorder. As he himself observed: “[Ms. C’s] score on this instrument [the somatization scale of the Pain Patient Profile] is consistent with identified and legitimate pain patients.” He does not appear to have considered the possibility that Ms. C was a “legitimate pain patient” entirely because of her fibromyalgia. Dr. Garber also appeared to ignore the possibility that a patient whose pain is entirely attributable to fibromyalgia, rather than to any psychological disorder, might engage in singing or “other types of distraction and deflection techniques which are often core components associated with pain management strategies.”

Finally, I find that despite his denial, Dr. Garber did, in fact, infer psychological symptoms from Ms. C’s inclination to under-report her psychological symptoms. He did this when he relied upon her results from the SOPA test to satisfy the requirement of his diagnosis that psychological factors play an important role in the onset or maintenance of Ms. C’s pain. The only thing the SOPA test established was Ms. C’s “pervasive inclination to minimize or deny the degree to which psychological phenomena tend to impact on her pain experience.” It did not establish that she, in fact, suffered from psychological symptoms that played an important role in the onset or maintenance of her pain.

Turning to Dr. Hapidou, she administered the Minnesota Multiphasic Personality Inventory -2 (the MMPI-2) and ten clinical questionnaires or tests measuring, among other things, pain intensity, depression, anxiety, catastrophizing, coping strategies, readiness to change and acceptance of pain. While the results of the MMPI-2 indicated “a somatic focus”, only two of the ten clinical tests produced elevated results. Dr. Hapidou concluded that “[Ms. C] was only admitting to physical symptoms. In our Program, this profile is most similar to those found in 49% of female chronic pain patients but with no evidence of an emotional cost of pain.” I acknowledge Dr. Hapidou’s later observation that individuals with “[u]nexpressed emotions may be putting additional stress on the body and physical symptoms may develop or worsen as a response to stress” (my emphasis). However, it is not clear to me that she made this observation in relation to Ms. C or that she based her diagnosis on it. Indeed, it is not clear what Dr. Hapidou based her diagnosis on. Her Summary of Findings on discharge did not suggest that Ms. C suffered from any significant psychological symptoms requiring treatment or follow-up. Her Summary reads as follows:

[Ms. C’s] personality/emotional adjustment profile indicated somatic concern, bottled up emotions, and a positive self-presentation. Even though she reported more pain and anxious symptoms at discharge, she maintained her eythymic mood, increased her use of relaxation and exercise as adaptive coping strategies, sought more social support, and reduced her use of guarding and resting as maladaptive coping strategies. She had no negative thoughts about her pain and left the program using more self-management approaches for dealing with chronic pain. At the same time, she endorsed reduced overall acceptance of pain but with her score still being comparable to others at discharge.

[Ms. C] is encouraged to continue pacing and modifying her activities, and to use all of the adaptive pain management strategies she learned here in order to continue to make gains in her rehabilitation efforts.³⁶

Lastly, I examine the two reports of Dr. Deborah Fitzpatrick, dated May 7 and September 21, 2009,³⁷ though again it is really only the first report that need be considered. The second report adds nothing significant to her analysis.

Dr. Fitzpatrick’s report of May 7, 2009 stated that two tests were administered: the Personality Assessment Inventory (PAI) and the Beck Depression Inventory (BDI). Dr. Fitzpatrick described the PAI results as being “... consistent with previous psychological assessment done by Drs. Garber and Day, there were clear indicators of mild-moderate positive impression management (T=score 70) at the time of this assessment ... some psychologists who have previously assessed her had interpreted her overly positive representation of herself and life to mean that she would be prone to under-report her symptoms and experiences.” Dr. Fitzpatrick found that according to the BDI, “a screener for depressive experiences, her scores were in the mild range. She endorsed ‘I feel like crying, but I can’t’ and ‘I am less interested in other people or things than before.’”

Dr. Fitzpatrick then provided the following overall impression of Ms. C:

It is this writer’s impression that [Ms. C] has been coping psychologically by relying largely on distraction (i.e., singing, reading the Bible) and emotional suppression of her reactions to this accident [of December 2005]. There is however some research to support that singing can release some of the body’s natural endorphins (pain killers). She’s become “spiritual” since around 2006. [Ms. C], by 2008, described in a post-discharge appointment at the Chronic Pain program she attended in Hamilton [the CPMU], that she decreased her crying about her pain, because she realized it exacerbated the pain. She has tried to keep her spirits up by a combination of the above and thinking positively, to an extent which she does not identify/admit to significant feelings of depression. However, the above described coping attempts have become inadequate, and anxiety is increasingly breaking through. At the time of this assessment [in late January and early February 2009], she moreover endorsed on the BDI “I am so restless or agitated that I have to keep moving or doing something.” She described that she commonly experiences anxiety about her post-MVA physical state and the uncertainty of not knowing what her functioning might be like each day, and her post-accident finances.

Finally, Dr. Fitzpatrick noted that Ms. C had not received any psychotherapy in relation to the accident of December 2005. She recommended, and subsequently provided, psychotherapy for the following:

a) help her work through her accident-related emotional responses (i.e., especially anxiety, loss of sense of independence in earning her own money, efficacy), and to stave off already present signs of depression.

b) Stress management strategies to assist with her post-MVA anxiety.

c) Provide booster sessions of education about chronic pain, non-medical pain management, and the stress-pain relationship.

d) Assist Ms. C in working through the accumulated frustration in relation to feeling misunderstood about her post-MVA pain, and impact on her physical and work functioning, especially in the context of apparently new emerging medical diagnostics information that suggests additional injury not known about until now.

My task in this proceeding is not to determine whether or not the psychotherapy treatment recommended by Dr. Fitzpatrick was reasonable and necessary. However, in my view, Dr. Fitzpatrick’s report did not establish an adequate foundation for her diagnosis of “Pain Disorder Associated with a General Medical Condition and Psychological Factors (i.e., anxiety which can maintain or exacerbate pain).” I say that for two reasons.

First, I do not accept that Ms. C has a psychological disorder because “she commonly experiences anxiety about her post-MVA physical state and the uncertainty of not knowing what her functioning might be like each day, and her post-accident finances.” Any person injured in a motor vehicle accident and off work for an extended period might experience such anxiety without necessarily suffering from a psychological disorder.

Second, even if Ms. C’s “anxiety is increasingly breaking through”, Dr. Fitzpatrick confirmed that she “has been coping psychologically by relying largely on distraction (i.e., singing, reading the Bible) and emotional suppression of her reactions to this accident.” Without some explanation of why such coping techniques “have become inadequate” or how they are otherwise harmful or inappropriate, I do not accept that they constitute evidence of a psychological disorder, particularly when her BDI scores were reported to be in the mild range. Instead, I accept Dr. Day’s opinion that such coping techniques are commendable and, in any event, “certainly not evidence consistent with the presence of a somatoform disorder such as Pain Disorder Associated with Psychological Factors and a General Medical Condition.”

For these reasons, I conclude that Ms. C has not established a causal link between the accident of December 2005 and her alleged inability to work after August 2008. There can, therefore, be no special award granted in relation to the Insurer’s termination of IRBs in August 2008.

Special award in relation to the Insurer’s pre-August 2008 termination and reinstatement of benefits

In his opening, Ms. C’s counsel indicated that she claimed a special award in relation to the Insurer’s termination of IRBs in August 2008. Counsel for the Insurer did not object to this claim being added to the issues for arbitration though he noted that there had been no prior notice of such a claim.

I also learned through counsels’ opening statements that there was a termination and a reinstatement of IRBs prior to August 2008. This was because the Insurer initially took the position that Ms. C had only sustained WAD II injuries but later accepted that her injuries went beyond that category and the associated limit on IRB-entitlement. However, Ms. C’s counsel did not, in his opening statement, make a claim for a special award in relation to this earlier withholding of benefits.

At the outset of the hearing, there was also a discussion of the witnesses to be called. While the Insurer’s claims representative, Ms. Dawn Brillinger, was present at the hearing, counsel for the Insurer did not indicate that he intended to call her as a witness. He named instead three expert witnesses and the dates they would appear.

Through Ms. C’s testimony, I learned that as a result of the Insurer’s earlier termination and reinstatement, she had been without benefits for several months. As a result, on the third day of the hearing, before the Insurer started entering its case, I put the parties on notice that I would also consider the possibility of granting a special award in relation to this earlier withholding of benefits. Again, counsel for the Insurer did not object, indicating only that he might then have to call Ms. Brillinger as a witness to deal with the issue. The hearing then adjourned over the Christmas break.

When the hearing resumed, Ms. Brillinger was, in fact, called as a witness. Her evidence-in-chief made it clear that after the WAD II issue was resolved in Ms. C’s favour, the Insurer continued to withhold IRBs due to a concern about Ms. C’s possible entitlement to benefits under the Workplace Safety and Insurance Act, 1997.

On cross-examination, Ms. C’s counsel took the position that his questions could not be restricted to the issue of the Insurer’s earlier termination and reinstatement benefits. In his view, once Ms. Brillinger took the stand, she could be cross-examined on any relevant issue and, as a witness, could be required to produce documents in her possession even if those documents had not been previously demanded. Counsel for the Insurer protested, maintaining, among other things, that some of the documents demanded raised issues of solicitor/client privilege.

Rather than rule on any of these issues, I asked counsel to prepare their submissions and adjourned the hearing for a week, to January 15, 2010. I also gave counsel copies of my decision in the case of Lin and Liu and ING Insurance Company of Canada³⁸, dealing with the interface between the Schedule and Workplace Safety and Insurance Act, 1997.

However, early the next day, January 9, 2010, I wrote counsel the following e-mail, reproduced in a letter the following Monday morning:

Upon reflection, I have come to the tentative conclusion that I was wrong to have raised the issue of special award in relation to the WAD II denial of benefits.

While I may have jurisdiction to raise special award, it now seems to me that my jurisdiction must be limited to the denials which the Applicant contests at the outset of the hearing. Otherwise, the hearing runs the risk of turning into an arbitrator-led enquiry into any denial or withholding revealed by the evidence, whether contested by the Applicant at the outset or not. We have seen how that creates production problems but I now think it also raises issues of procedural fairness.

In this case, the WAD II denial of benefits was not identified as an issue at the outset of the hearing. If I was wrong to have raised the possibility of a special award in relation to that denial, then I am also of the tentative view that I can now decide to stop considering that possibility. The hearing is not over and I should be entitled to reverse a previous, erroneous ruling.

My views remain tentative. If either of you wishes to argue the point further, you may do so on January 15, 2010. Otherwise, I think we can proceed directly to final submissions.

On January 15, 2010, counsel entered the following “admission” in relation to the Insurer’s earlier termination and reinstatement benefits:

On February 13, 2007, Economical received medical confirmation that [Ms. C’s] accident injuries involved something more than WAD II injuries. On February 16th, 2007, Economical paid [Ms. C] IRB’s retroactive to December 4, 2006 (the date when [Ms. C] contacted Economical to advise she remained off work and had more significant injuries) as well as on a go forward basis. However, at that time, Economical did not pay the IRB’s between March 28 [2006] – December 3, 2006 on the basis of the outstanding and unresolved WSIB issue. In light of case law subsequently decided, such benefit ought not to have been withheld until paid, with interest, on July 24th, 2007.

Ms. C’s counsel maintained that this agreed-upon admission should resolve any concerns I had about procedural fairness. In his submission, regardless of who raised the issue, Ms. C should not be denied a special award if it was now justified by the admission. The Insurer’s counsel submitted that my concerns about procedural fairness were both well-founded and unresolved by the admission. On the merits, he noted that the admission was only made “in light of case law subsequently decided [that is, my decision in Lin and Liu, dated May 8, 2008].” Pointing to the long and complex nature of that decision, he maintained that the Insurer’s withholding could not be described as unreasonable if it took place prior to the release of that decision.

It may be that experienced counsel were able to find a way around the procedural problems created when I raised this issue on my own initiative. Nonetheless, those problems flowed directly from my intervention. My conduct could, of course, be defended on the theory that I allowed the Insurer the opportunity to lead evidence and make argument on the issue I had raised. Nonetheless, I gave the Insurer little choice: it was effectively required to call a witness to explain its conduct. This then set the stage for an unseemly contest between my desire to limit Ms. Brillinger’s cross-examination to the issue I had raised and the Applicant’s desire to exercise her right to cross-examine any witness put forward by the Insurer on any relevant issue.

I now think that I should have avoided this situation by following the advice of Director’s Delegate Susan Naylor in the case of Royal Insurance Company of Canada and A. B.³⁹ She wrote:

Arbitrators have authority to raise a special award on their own initiative. However, the approach should be circumspect. This is particularly so where the applicant, with the benefit of counsel and all the facts, signals clearly that he or she is not questioning that the insurer acted reasonably. There is nothing inappropriate in an arbitrator, as a starting position, taking his or her cue from that applicant as to whether the insurer’s actions warrant further scrutiny. Furthermore, if the arbitrator proceeds, he or she must be crystal-clear as to the concerns to which the inquiry relates and the procedural implications, in order that the parties may have a fair opportunity to address the issue.

Accordingly, I now confirm my earlier tentative conclusion that I was wrong to have raised the possibility of a special award in relation to the Insurer’s pre-August 2008 termination and reinstatement of benefits.

However, in the event that I was right to have done so, I accept the Insurer’s submission that its pre-2008 withholding of benefits cannot be described as unreasonable because it took place prior to the release of my decision in Lin and Liu. As that decision explains, the law governing the interface between the Schedule and Workplace Safety and Insurance Act, 1997 is complicated and has, in my respectful opinion, often been misunderstood by parties and misapplied by arbitrators. While I hope that my decision serves to rectify that situation, it could not have done so before it was written and released. I would, therefore, have denied the claim for a special award on this ground.

EXPENSES:

In the event the parties cannot agree on expenses, they will follow the procedure set out in the Dispute Resolution Practice Code, 4th edition.

May 10, 2010

David Leitch Arbitrator

Date

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Ms. C. C. is not entitled to Income Replacement Benefits beyond August 10, 2008.
The Insurer is not liable to pay a special award.