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Denial of Income Replacement Benefits

June 10, 2010, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Arbitrator: David Leitch
Decision Date: May 10, 2010

Ms. C was injured in a motor vehicle accident on December 5,2005. She received income replacement benefits (IRBs) from Economical Mutual Insurance until August 10, 2008. The issue in the hearing was to determine if Ms. C was entitled to IRBs beyond August 10, 2008.

In order to be entitled to IRBs after August 10, 2008, Ms. C had to establish on the balance of probabilities that she had, as a result of the accident, suffered from a complete inability to engage in any employment for which she was reasonably suited by education, training or experience. If she could not establish a causal connection between the accident and her alleged inability to work, then she was not entitled to IRBs even if she 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.

Ms. C was diagnosed with fibromyalgia approximately two years prior to her accident of December 2005. She was able to work prior to the accident, but she was unable to work after. 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.

Born in England in August 1968, Ms. C immigrated to Canada in February 1989. 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.

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” her 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 stated that she did not feel 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.

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.

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. A, 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. After that point, she did 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?

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 had nerve impingements in her neck though she did not specifically allege that these were the result of the accident.

The opinion of the arbitrator was that neither the accident facts nor the medical evidence supported a finding that Ms. C sustained injuries to her spine as a result of her 2005 accident. Damage to her vehicle was very minor.

The medical reports confirmed that Ms. C's spine had undergone changes in recent years. However, they did 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. 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. 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. In June 2009, x-rays of the cervical spine showed disc/ostephyte protrusions with nerve impingements at C5-6 and C6-7. An MRI of the lumbar spine in May 2009 showed very early disc protrusion at L5-S1 without evidence of spinal stenosis. Dr. A stated that he did not think that this could have caused severe back pain, as there was no stenosis.

The arbitrator noted that on his first examination of Ms. C on March 1, 2006, Dr. RD, a neurologist, noted that she was complaining of pain in the cervical spine but his report to Dr. A said nothing about complaints of lumbar spine pain.
 
The arbitrator acknowledged that in August 2007 and May 2008 Dr. A completed Disability Certificates listing "low back pain" and "neck pain" as "injuries and sequelae that were the direct result of the accident.” However, these Certificates made no reference to injuries to the spine at any level. Like the specialists from whom she had received reports, Dr. A referred only to Ms. C's "worsening fibromyalgia." Based upon this evidence, the arbitrator did not attach any weight to the December 15, 2008 report of a registered massage therapist that stated that both her cervical and lumbar pain was outside the parameters of her overall 'fibromyalgia' pain.

The arbitrator concluded that it was highly unlikely that Ms. C sustained anything more than soft tissue injuries in the accident in 2005. There was 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 was 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. H's diagnosis of fibromyalgia was contained in his first report to Dr. A, dated February 24, 2004, written almost two years before the December 2005 accident. Dr. H saw Ms. C again approximately a year after the accident.
Dr. PK, a physiatrist, who examined Ms. C in March 2008 and July 2009 at the request of her counsel.
Summarizing the three specialists' reports described to this point, the arbitrator noted that only Dr. PK expressed the opinion that Ms. C's fibromyalgia was exacerbated by the accident of December 2005. Dr. H's first report described fibromyalgia as "a phenomenon of pain and sense dysregulation from a central origin, of uncertain pathogenesis" and his second report referred only to "a relapse of generalized fibromyalgia", without specifying a cause. Dr. He referred to "a prior history of fibromyalgia secondary to initial car accident" but did not identify the December 2005 accident as the cause of any of Ms. C's symptoms.

The arbitrator could not read Dr. S's report as expressing agreement with Dr. PK's view that the accident of December 5, 2005 exacerbated Ms. C's fibromyalgia. That interpretation of his report was blocked by the last paragraph where Dr. S acknowledged, as had Dr. H, that the cause of fibromyalgia was still not known.
 
In summary, Dr. S's report supported three findings: first, that the diagnoses identified by Dr. PK 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 was unknown. Relying on Dr. S's significant expertise, the arbitrator concluded that Ms. C had not established, on the balance of probabilities, that the 2005 accident exacerbated her fibromylagia.

While the arbitrator thus decided the issue on the basis of what he considered to be the best medical/scientific evidence placed before him, it was also pertinent to 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 did not need to provide a medical/scientific explanation for her impairment. She needed only to establish that her impairment was caused or contributed to by the accident and she had to 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 the arbitrator’s view, it was 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 the arbitrator or before any of the doctors who examined her after 2002. Third, Dr. S said that Ms. C's fibromyalgia emerged two or three years after the 1998 accident. Dr. H said that she developed fibromyalgia symptoms by 2001. It was 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. PK 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. PK that her fibromyalgia pain did not re-emerge after the December 2005 accident until January 2006.

In the arbitrator’s view, this evidence, taken as a whole, did 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?

However, the arbitrator had 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 was 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, the arbitrator accepted Dr. S's opinion that fibromyalgia had 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 required Ms. C to prove that she had suffered from some kind of psychological disorder. She could not meet this requirement through her diagnosis of fibromyalgia because, as Dr. S explained, it had not been established that fibromyalgia has psychological or psychiatric origins.
Ms. C was first examined by the psychologist Dr. D 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.

Ms. C was seen at the request of her counsel by the psychologist Dr. JRG 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. D, observing that while her psychometric profile may have been devoid of marked indexes consistent with a diagnosable disorder, the lack of such signs or symptoms could have been explained by her inclination to minimize and understate.
In early 2009, a second clinical psychologist, Dr. DF, diagnosed Pain Disorder Associated with a General Medical Condition and Psychological Factors (i.e., anxiety which can maintain or exacerbate pain).

The arbitrator had to examine the reports of Drs. JRG, Ha and DF to determine whether they established an adequate foundation for the diagnosis they advanced. In the arbitrator’s view, they did not.

Dealing first with Dr. JRG, the arbitrator was unable to understand how Dr. JRG was able to rely principally on Ms. C's clinical presentation of pain in order to make a psychological diagnosis. In doing so, he appeared 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. S, and second, that she might have manifested the very same clinical presentation due to fibromyalgia without the accident. In this regard, it was noted that in his first report, dated April 9, 2008, Dr. JRG 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 was left to his colleagues in Rheumatology, Internal Medicine and Physiatry. Dr. JRG was, effectively, deferring to the opinion of someone like Dr. S as, indeed, he should have done.

Likewise, it may have been quite right that a consistent demonstration of pain behaviour together with a denial of psychologically-based difficulties constituted the core underpinnings which drive a Somatization phenomenon. But Dr. JRG had 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 the instrument (the somatization scale of the Pain Patient Profile) was consistent with identified and legitimate pain patients. He did not appear to have considered the possibility that Ms. C was a legitimate pain patient entirely because of her fibromyalgia. Dr. JRG 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 that are often core components associated with pain management strategies.

Finally, the arbitrator found that despite his denial, Dr. JRG 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.

In the arbitrator’s view, Dr. DF'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). This was based upon two reasons.

First, the arbitrator did not accept that Ms. C had 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 was increasingly breaking through, Dr. DF confirmed that Ms. C had 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 had become inadequate or how they were otherwise harmful or inappropriate, the arbitrator did not accept that they constituted evidence of a psychological disorder, particularly when her BDI scores were reported to be in the mild range. Instead, the arbitrator accepted Dr. D'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, the arbitrator concluded that Ms. C had not established a causal link between the accident of December 2005 and her alleged inability to work after August 2008. There could, therefore, be no special award granted in relation to the Insurer's termination of IRBs in August 2008.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Disability Insurance, Pain and Suffering, Physical Therapy, Spinal Cord Injury, Treatment

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About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

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