Citation: D.S. v. Saskatchewan Government Insurance, 2006 SKAIA 010 Date: 20060301 File: 096 of 2004 BETWEEN D.S., Applicant and
Saskatchewan Government Insurance, Respondent
Appearances:
Kenneth Ready, Applicant
Jane Wootten, for the Respondent
Before: Peter Bergbusch, Chair
Carol Olson, Commission Member Darleen Topp, Commission Member
THIS DECISION HAS BEEN EDITED TO PROTECT THE PERSONAL AND HEALTH INFORMATION OF INDIVIDUALS BY REMOVING PERSONAL IDENTIFIERS AND OTHER IDENTIFYING INFORMATION.
Heard at Regina, Saskatchewan
DECISION
[1] The Appellant, D.S., appeals a decision of Saskatchewan Government Insurance (“SGI”) dated March 23, 2003, terminating income replacement benefits pursuant to section 129 of The Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 (the “Act”), on the basis that she was able to hold the employment she had held at the time of her motor vehicle accident. She received income replacement benefits until March 30, 2003. Mediation was completed unsuccessfully on May 7, 2004.
FACTS
[2] The Appellant was injured in a motor vehicle accident on June 20, 2002, when the vehicle she was traveling in was struck from behind while stopped at a red light. At the time of the impact, the Appellant was sitting in the front passenger seat, leaning forward to adjust the car radio. The cost to repair damage to the rear bumper of her vehicle was $510.27. The Appellant’s back was sore immediately but she did not seek medical care for a week following the accident. She worked the following day for about 4 ½ hours, leaving early because her pain symptoms had worsened throughout the day. She continued to work, with increasing back pain, on subsequent days.
[3] The Appellant lives in a 1500 square foot, 4 level split house. Beginning on August 16, 1982, she began employment in a [retail department store], eventually as a part time sales clerk in the furniture department. She worked four days a week, 7.5 hours a day. Her duties included assisting customers, which involved walking around the store and moving mattresses and chairs for customers to view; re-arranging furniture, including setting up displays; and pricing merchandise. In 1997 she was off work for 7 to 9 months recovering from a low back injury sustained when she was moving large boxes of dishes at work. She believes that she recovered completely from this injury, although she testified that she occasionally experienced residual symptoms in her lower right back. The Appellant missed work again for 9 months, beginning in June 1999, after she
developed back pain from lifting furniture. She eventually completed a graduated return to work and says that she completely recovered from this injury. She also suffered from episodes of dizziness in 1999, related to an inner ear infection, but this resolved without treatment. The Appellant testified that, prior to the 2002 motor vehicle accident, she was in “excellent health,” and participated in a bowling league, took long walks and cycled, and had no limitation on the activities she pursued. She did the housework, gardening, and laundry, and helped to shovel snow at home.
[4] The Appellant attended on her family doctor, Dr. Matt Casey, on June 27, 2002. Dr. Casey’s primary diagnosis was a grade II back strain, and he expected that the Appellant would be unable to participate in normal activities including work for 3 to 6 weeks. She was experiencing pain in the lumbar spine region with extension, flexion, and right and left lateral flexion. He referred the Appellant to physiotherapy and, on about July 9, 2002, she began undergoing treatments, 3 times per week. The Appellant says that she also began to experience neck pain in July 2002. A progress report by her physiotherapist dated August 12, 2002, indicated that the Appellant was not responding well to treatment. Flexion and extension of the lumbar spine aggravated her pain symptoms. Physiotherapy treatments were discontinued.
[5] X-rays of the Appellant’s lumbar spine on August 6, 2002, showed no fractures or significant bone, joint or disc abnormalities.
[6] SGI advised the Appellant by letter dated September 17, 2002, that she would receive an income replacement benefit of $551.24, payable bi-weekly.
[7] The Appellant underwent a secondary assessment in October 2002 by Maximum Potential Rehab Inc. She advised the assessment team that her condition had deteriorated since the motor vehicle accident and she could not return to work because of the lifting and bending required. She was also unable to perform housework or participate in her normal recreational activities. She complained of pain over the right sacroiliac joint and along the superior iliac crest, which she subjectively rated for severity as “8/10.” The
pain was aggravated by almost any activity, including standing, sitting, walking, driving, and work. The assessment team’s diagnosis was a low back sprain, grade II, with sacroiliac involvement, and neck and upper thoracic pain with headaches. The assessment team was perplexed by the severity of the Appellant’s symptoms given the relatively minor nature of the collision and her limited initial symptoms:
… There was considerable discussion among the team members about this lady’s presentation. We had significant concerns that this lady has two previous prolonged absences from work, for what should have been soft tissue injuries. This accident once again appears to be quite a minor injury, and her initial presentation in the first few weeks would appear to confirm that. Unfortunately despite treatment, her condition has worsened rather than improved which is inconsistent with the natural course of a soft tissue injury. Not only has her low back problem worsened, but over the past 6 weeks she has now developed upper thoracic and neck problems and associated headaches which are difficult to attribute to the MVA that occurred in June. Even if we accept that she has developed the neck and upper back symptoms in response to her lower back injuries, it is difficult to understand why these problems are so severe, and progressive. It is for this reason that one of our recommendations is for rheumatologic consult to rule out other unassociated conditions to explain her presentation …
In addition to a consultation with a rheumatologist or an orthopedic surgeon, the assessment team also recommended a 6-week secondary treatment program to focus on the Appellant’s return to work.
[8] The Appellant was next assessed by Courtside Sports Medicine & Rehabilitation (“Courtside”) in December 2002. The Appellant completed the American Oswestry Disability Profile, which examines a patient’s perception of his or her abilities as limited by present complaints. The Appellant scored in the severe perceived disability category, meaning that “pain remains the main problem in this group of patients, but travel, personal care, social life, sexual activity and sleep are also affected. These patients require detailed investigation.” She complained of pain on the right side of her neck, varying in severity from minor to extreme. She also complained of constant pain in the right side of her low back area, and right buttock. Sometimes the severity of the pain rated 3 out of 10, but at other times “it’s so painful I can barely move.” She did not believe that she had recovered at all from her injuries. Upon physical examination, the
Appellant was found to have restricted range of motion in the areas of her cervical spine, thoracic spine and lumbar spine. In each area, active flexion and extension were decreased, from between 20 and 65 percent. Side flexion was also decreased. The assessment team posited that the Appellant’s neck problems were the result of the restricted range of motion of her lumbar spine. Six weeks of secondary treatment were recommended, followed by a graduated return to work.
[9] After several weeks of physiotherapy, the Appellant’s repetitive lifting capacity fell within medium work demands, with the only limiting factor being the amount of weight she could lift. However, the Appellant’s capacity to carry progressively heavier loads was limited by an increase in her pain symptoms. She was able to walk for 20-25 minutes twice daily on a treadmill. As of January 13, 2005, her lumbar range of motion was still restricted by 25 to 30 degrees in all directions.
[10] Personnel from Courtside conducted a job site visit at the Appellant’s place of work on January 22, 2005. Based upon their review of her employment demands, including the frequency she was required to perform each task, they concluded that the Appellant met the general physical demands of her employment in every respect except for the requirement to push couches across rugs and tile flooring, which was considered a minor requirement (up to 10% of a shift.)
[11] Following the job site assessment, Courtside prepared a return to work program for the Appellant, to begin the week of February 10, 2003. The intention was that the Appellant would work for 3 hours a day during the first two weeks, increasing to 4 hours a day during the third and fourth weeks, and to 6 hours a day during the final week. The Appellant was to avoid moving heavy furniture during the first two weeks, take short breaks as needed, and continue with rehabilitation over the first four weeks of her return to work. The expectation was that the Appellant would suffer a temporary increase in pain symptoms during the return to work.
[12] As recommended by Maximum Potential Rehab Inc., the Appellant was examined by a rheumatologist, Dr. Ardyth Milne, on February 4, 2003. Dr. Milne did not see any evidence that the Appellant’s sequelae were the result of an underlying cause other than the motor vehicle accident. However, Dr. Milne believed that the Appellant’s back problems had improved considerably through rehabilitation and that she should progress to a return to work program. The Appellant believed that her condition had only improved about 10%.
[13] The Appellant began her return to work on February 10, 2003. On February 12, 2003, she was unable to complete her shift and left work early for treatment, with muscle spasms on the right side of her upper lumbar spine. The following day she was accompanied to work by a physiotherapist for a “Job Shadow.” The physiotherapist instructed the Appellant in self-management of symptoms, including rest and stretch breaks. The Appellant was advised that the graduated return to work was part of her rehabilitation and she was building up her tolerance. The physiotherapist also followed up with a letter to the Appellant’s employer regarding the breaks she required and suggesting that the Appellant should be supplied with a stool or chair.
[14] The Appellant says that she was receiving physiotherapy treatment to her neck in January 2003, when the stretching suddenly made her dizzy. This incident is summarized as follows:
On 9 January 2003 her physiotherapist documented applying a craniovertebral mobilization technique/manual traction, presumably due to increased headaches that were documented. [The Appellant] reported that this resulted in the onset of dizziness, which persisted from that point, until it resolved spontaneously in March 2003. This assertion appears confirmed by the fact that the first documented report of dizziness was on 10 January 2003, when her therapist noted “was a little dizzy last night”, although she did not specifically relate it to the application of traction. From that point onwards there are frequent reports of persistent dizziness. …
She could not complete her exercises and went home. She found that she felt dizzy when extending her neck and flexing it sidewise. The Appellant was examined by Dr. Casey on February 25; he expressed the view that she has benign paroxysmal positional vertigo,
unrelated to the motor vehicle accident, which was completely relieved by rest. Dr. Casey advised the Appellant to avoid any movements that triggered dizziness, but to continue with physiotherapy. According to a Courtside progress report, he also advised her not to continue with her return to work until her symptoms of dizziness were resolved.
[15] The Appellant was also referred to a neurologist, Dr. Felix Veloso, about her complaints of dizziness. Dr. Veloso examined the Appellant on March 19, and reported that his findings upon examination were all normal. Findings from a cranial CT scan, an EEG and cervical spine x-rays were all normal. Dr. Veloso concluded that the Appellant’s history was consistent with “posttraumatic dizziness,” with migraine headaches likely contributing to her dizziness.
[16] When Dr. Veloso saw the Appellant again on August 26, 2003, her dizzy spells had resolved and no further neurological treatment was required.
[17] The Appellant testified that she was in constant pain during the first week of the return to work program and could not even walk around on the store floor. She also described one instance when she took the elevator upstairs, and when she got upstairs she was in so much pain she had to sit in the staff lounge area for a while. She felt disoriented and had her son take her to the hospital. She testified that after three days of the graduated return to work, she simply could not return.
[18] The Appellant continued to attend the conditioning program at Courtside until March 21, 2003. The assessment team concluded that the Appellant met the pre-injury work demands of her employment position with respect to walking tolerance, lifting, carrying and pushing/pulling (with assistance from other employees), and sitting tolerance. She needed to build up her endurance in relation to walking and sitting, which would have been addressed during her graduated return to work. She continued to experience symptoms of constant low back soreness, increasing with activity, and had reduced range of motion of her back.
[19] The Appellant was contacted by Lynda McCallum, a personal injury representative, in April 2003 to arrange for an occupational therapist to conduct a home assessment. The purpose of the assessment was “to determine areas of difficulty in heavy housekeeping tasks and provide education on biomechanical adjustments to reduce lower back pain and discomfort.” A full home assessment was not completed because the Appellant was not prepared to have an occupational therapist come to her house on the proposed days. Instead, SGI’s personal injury representative interviewed the Appellant by telephone. She advised that she was unable to do vacuuming and was sharing floor mopping duties with her husband. She was able to clean the toilet and bathtub, but had trouble standing up afterward and experienced low back pain. She was also able to dust, but could not carry laundry. She did the grocery shopping with her daughter’s assistance, although she could not carry as many bags at a time as she had before the motor vehicle accident. She could do all meal preparation.
[20] Courtside next saw the Appellant on August 25, 2003, in order to re-assess her condition following a request by SGI. The Appellant believed that her condition had worsened since rehabilitation was terminated on March 21, 2003, and perceived herself as moderately disabled. Active flexion of her lumbar spine was reduced by 20% and active extension was decreased by 40% “and demonstrated very poor mid and lower lumbar extension.” In testing the Appellant’s functional capabilities relative to her job demands, Courtside found that the Appellant met the pre-injury work demands for walking, and that for lifting and carrying capacity, she met the frequent pre-injury work demand of lifting and carrying 20 lbs., but not the maximum demands to lift and carry 50 lbs. The report noted that the Appellant might have to build up endurance for walking, and this had been one of the goals of her return to work program. The report concluded that the Appellant still had “ongoing spinal dysfunction, as well as decreased function following her 2002 motor vehicle accident” and decreased abdominal and trunk strength and hip flexibility. The recommendation was a 6 week, 3 times per week conditioning and physiotherapy program, with a home exercise program.
[21] Following the Appellant’s appeal of SGI’s decision to terminate her benefits, SGI authorized further treatment. The Appellant was assessed again by Courtside on December 4, 2003. She completed the American Oswestry Disability Profile, scoring in the “moderate perceived disability category,” which is described as follows:
Moderate Disability: This group experiences more pain and problems with sitting, lifting and standing. Travel and social life are more difficult and they may well be off work. Personal care, sexual activity and sleeping are not grossly affected and the back condition can usually be managed by conservative means.
The Appellant indicated numerous limitations in another questionnaire:
1. I change positions frequently to try to get my back comfortable. 2. Because of my back, I walk more slowly than usual.
3. I am not doing any of the jobs that I usually do around the house because of my back.
4. I try to get other people to do things for me because of my back. 5. I only stand for short periods because of my back.
6. My back is painful almost all the time.
7. I only walk short distances because of my back. 8. I avoid jobs around the house because of my back.
On a scale of zero to ten (with zero meaning no pain and ten meaning “emergency room status”), she rated her pain at the time of assessment as a five. She had not had any right leg pain for several months, but had experienced muscle spasms in her neck two weeks earlier, for which she was taking several medications.
[22] Restrictions on the range of motion of the Appellant’s lumbar spine were described as follows:
Active extension was decreased by 75 percent, with pain in the right lumbar spine. Active flexion was decreased by 25 percent, with complaints of pain in the right. Active side flexion movements were decreased by approximately 40 percent bilaterally, with reports of pain in the right lumbar spine region. Active rotation movements were decreased by 20 percent bilaterally, again with reports of pain in the right lumbar spine region.
Left Flexion Quadrant was decreased by 40 percent, with pain produced in the right lumbar spine region.
Right Flexion Quadrant was decreased by 20 percent, with pain produced in the right lumbar spine region.
Right and left Extension Quadrants were decreased by 50 percent with pain elicited in the right lumbar spine region.
Resisted testing produced pain [sic] the right lumbar spine region, with resisted left rotation.
The Appellant also experienced pain in the right lumbar spine region during neural tension. Right hip internal and external rotation was also limited by 20 percent.
[23] A home exercise program, mobilizations of the lumbar spine and sacroiliac joint, and physiotherapy and conditioning 3 times a week for 6 weeks were recommended.
[24] The Appellant was discharged from Courtside’s rehabilitation program on or about January 23, 2004, following treatments on 15 days. According to the discharge summary, the Appellant now rated her average pain as a 2 (out of 10), and range of motion of her lumber spine was improved:
Active flexion was decreased by 20 percent. Active extension was decreased by 30 percent. Active side flexion movements were within normal limits. Active rotation movements were decreased by 10 to 20 percent bilaterally. Flexion quadrants were decreased by 20 percent.
Extension quadrants were decreased by 25 percent. Resisted testing was pain free.
[25] While the Appellant’s range of motion in the lumbar spine area had improved considerably since her last assessment on December 4, 2003, it was essentially unchanged from August 25, 2003:
Movement Measured Degrees Ideal Degrees
August 25, 2003 Lumbar Flexion 104 120 Lumbar Extension 21 40 Janaury 22, 2004 Lumbar Flexion 99 120 Lumbar Extension 25 40
Source: Courtside Discharge Summary
Femoral nerve stretch testing continued to produce pain in the lumbar spine region, but other neural tension tests did not.
[26] Testing of the Appellant’s ability to repetitively carry and lift objects indicated that she met the requirements for a medium work classification, meaning that she was able to lift and carry between 20 and 50 lbs. She reported a significant increase in pain following these tests.
[27] Apparently, the Appellant and Courtside differed over the amount of progress she had made. While Courtside suggested that the Appellant was close to meeting her job demands for lifting and carrying and should be encouraged to start a graduated return to work, the Appellant requested a letter indicating that she required further treatment.
[28] Upon review of the Appellant’s file, SGI’s medical consultant, Dr. Arnold Endsin, concluded that the Appellant’s request for additional therapy was not supported by the information on file, although he does not explain this conclusion. He remarked that graduated return-to-work programs are rehabilitative, and that this was the appropriate next step in the Appellant’s treatment. He also recommended that the Appellant be referred to S.T.A.R. Rehab for an independent evaluation, since this had previously been suggested by Dr. Flotre in November 2002.1
[29] Dr. John Sibley of S.T.A.R. Rehab saw the Appellant on March 26, 2004, and submitted his report to SGI on April 15, 2004. He thoroughly reviewed the Appellant’s medical history and treatment since the motor vehicle accident. The Appellant believed that her condition had not improved since the motor vehicle accident and complained of constant low back pain, which became worse with activity ad prolonged sitting or standing. She reported that she could do most household work, except for heavier cleaning and carrying laundry. She was also able to tend the flower garden. She was able to bicycle and do crafts, but only for short periods at a time. She had not resumed bowling since the motor vehicle accident. She said that she continued to suffer from “dizzy spells” and that these and low back pain were preventing her from resuming work. Upon physical examination, the Appellant had to stretch during the examination to relieve back pain and was careful when getting on and off the examining couch.
1
However, “she appeared healthy and comfortable and alert throughout the interview and physical exam.” She reported moderate tenderness in the right sacroiliac joint and upper right buttock and radiation of pain into the right thigh. She perceived herself to be severely disabled from low back pain.
[30] Dr. Sibley commented that the motor vehicle accident likely exacerbated mechanical low back pain. Although the Appellant had not complained of back pain for some period before the motor vehicle accident, she had suffered from two prolonged bouts of back pain and she would have been “at substantial risk of recurrence even had she not had the June 2002 MVA.” Dr. Sibley did not believe that the episodes of dizziness reported by the Appellant could have been caused either by injuries sustained in the motor vehicle accident or subsequent treatment. In any event, these had resolved spontaneously.
[31] Dr. Sibley made, essentially, three recommendations. First, the Appellant should discontinue medications since they were not providing her with relief. Second, the Appellant should not have further formal rehabilitation, since she had already undergone extensive rehabilitation and further intervention might simply foster dependence. She should, however, continue a daily self-directed exercise program. Third, the Appellant should recommence a graduated return-to-work program. Dr. Sibley did not discount the Appellant’s report of continuing back pain, but concluded that she was physically capable of returning to work:
… I recognize she still has low back pain and she feels the back pain is aggravated with activity. Nonetheless there are no activities that are medically contraindicated for her, including return to work. From today’s examination and from review of the medical records she appears fit for return to work and it should be seen as being in her medical best interests to return to all normal daily activities, including work.
Dr. Sibley recommended that the Appellant should gradually return to full-time work over 4 weeks.
[32] The Appellant was critical of Dr. Sibley’s examination, saying that he had only spoken to her for 45 minutes and had examined her flexibility, but that was all. She also disagreed with his assessment that she was fit to return to work.
[33] In a subsequent letter, Dr. Sibley clarified that the Appellant had been fit to return to work by February 2003, when she originally entered a return to work program. Dr. Sibley also repeated that the Appellant’s symptoms of dizziness were unrelated to the motor vehicle accident.
[34] The Appellant ended her employment with the retail department store in November 2004; until that time she had been on an unpaid leave of absence. She says that she could not see herself going back to a position that required heavy lifting. She subsequently tried to work in a lottery kiosk, but only lasted one day because she found the effort too painful. She has also had to undergo cancer treatment, although this was to conclude by May 2005. Once this treatment was completed, she intended to look for another job for which she is suited.
[35] In July 2003, the Appellant was also evaluated by Kerry Fitzsimmons, a physiotherapist with Regina Sports and Physiotherapy Clinic, following a request by her legal counsel. In his report dated August 11, 2003, Mr. Fitzsimmons indicated that the Appellant no longer complained of cervical or upper quadrant symptoms, including dizziness, but had moderate to severe lower back pain. Putting weight on her right leg seemed to aggravate the pain she was feeling. As for whether the Appellant’s pain was consistent with objective findings, Mr. Fitzsimmons wrote:
Physical examination revealed objective signs of biomechanical dysfunction in her right low back and sacroiliac joint, which were consistent with reports that have been documented by her caregivers throughout the file. There was no evidence of symptom magnification nor any inconsistencies on physical examination and, as a consequence, these findings were felt to be credible.
With respect to associating these current findings with her motor vehicle accident the following points need to be taken into account.
A. She has a history of 2 prior low back injuries, both of which resulted in more extended time-loss claims than would be the norm but both of which apparently did ultimately resolve fully, with no residual functional difficulties or symptoms.
B. There was no evidence, on the reports of x-rays taken since her July 2002 accident, of any pre-existing degenerative changes that might cause such symptoms.
C. Her current symptoms have consistently been documented as present since her accident in June 2002. If the records indicate that she was not complaining of residual symptoms after her last low back injury (ie. a work-related injury in June 1999) then it would be reasonable to conclude that her current symptoms could be attributed to her involvement in the accident. These records, specifically her Family Physician’s records, were not available for review.
[36] At the time of his report, Mr. Fitzsimmons had not reviewed any of the reports and records related to the Appellant’s treatment, but subsequently he had an opportunity to review Dr. Casey’s file. The Appellant had sustained right lower back injuries on two prior occasions, March 29, 1997 and June 26, 1999, and the second injury included pain in the right sacroiliac region. As at February 29, 2000, the Appellant had minimal low back pain and had resumed full-time duties. She also had no perceived disability at that time.
LAW AND ARGUMENT
[37] Pursuant to subsection 193(7) of the Act, in an appeal the Commission may:
(a) set aside, confirm or vary the insurer’s decision; or
(b) make any decision that the insurer is authorized to make pursuant to Part VIII of the Act.
The Commission must exercise its discretion judicially, and will overturn a decision of SGI only if an applicant establishes that SGI’s decision was erroneous, or based on erroneous assumptions, or was unreasonable.2
2
[38] SGI terminated the Appellant’s benefits in reliance upon section 129 of the Act, which reads:
129(1) Notwithstanding any other provision of this Division, a victim ceases to be entitled to an income replacement benefit when any of the following occurs: (a) the victim is able to hold the employment that he or she held at the time of the accident; …
[39] In its decision letter, SGI indicated that it relied on Courtside’s advice that the Appellant was able to perform most of her work duties and would have been able to hold the employment she had held prior to the motor vehicle accident after she had completed a graduated return to work. However, her graduated return to work was interrupted at Dr. Casey’s direction as a result of the episodes of dizziness she was experiencing. SGI relied upon Dr. Casey’s opinion that the Appellant has benign paroxysmal positional vertigo, which was not caused by the motor vehicle accident. Accordingly, SGI concluded:
The reason you were not able to complete your return to work and the reason you remain off work is no longer related to the injuries sustained from your motor vehicle accident. We are unable to consider any further income replacement benefits.
[40] The Appellant’s entitlement to an income benefit is provided in Section 112 of the Act:
112(1) A full-time earner is entitled to an income replacement benefit it, as a result of an accident, the full-time earner:
(a) is unable to continue the full-time employment he or she held at the time of the accident;
[41] The phrase “unable to hold employment” is defined at section 18 of The Personal Injury Benefits Regulations:
18 A victim is unable to hold employment when a bodily injury that was caused by the accident renders the victim entirely or substantially unable to perform the essential duties of the employment that the victim:
(a) performed at the time of the accident; or (b) would have performed but for the accident.
[42] SGI’s position is that the Appellant would have been substantially able to perform the essential duties of her employment once she had completed her graduated return to work, which should have occurred by March 14, 2003. The reason that she did not complete the return to work was the episodes of dizziness she began to experience, but these were not, SGI argues, caused by the motor vehicle accident.
[43] The applicant’s counsel also argued that the onset of symptoms of dizziness which caused the Appellant to stop her graduated return to work should not be seen as unrelated to the motor vehicle accident; rather, these were the result of the physiotherapist’s treatment for her injuries sustained in the motor vehicle accident. Dr. Veloso’s letter refers to “post traumatic dizziness,” suggesting that these symptoms are related to a neck injury sustained during treatment. He further argued that confusion over the cause of the Appellant’s dizziness was the “moment where everybody got off track and stayed off track.”
[44] SGI’s counsel argued that all objective information indicated that the Appellant was able to return to work at the time her benefits were terminated. For example, Courtside’s discharge summary of February 5, 2003, showed that the Appellant had made “significant improvement in functional capacity” and was ready to begin a graduated return to work. It is not clear that manipulation of her neck during physiotherapy caused the Appellant’s dizziness, nor does Dr. Veloso’s letter state this clearly. Furthermore, Dr. Casey does not make a causal connection between the Appellant’s symptoms of dizziness and her treatment.
[45] It is very difficult to know what to make of the onset of episodes of dizziness in January 2003. We did not have the benefit of testimony from any of the physicians or the physiotherapists who prepared reports that refer to this condition. Dr. Casey, the Appellant’s family physician, expressed a tentative view that she is subject to benign paroxysmal positional vertigo, which was not caused by the motor vehicle accident. It was at his direction that the Appellant interrupted her return to work.
[46] However, the neurologist to whom the Appellant was referred reached a different conclusion: post traumatic dizziness. Unfortunately his report does not explain this diagnosis in any detail. It appears from the history set out in Dr. Veloso’s report that the “trauma” he refers to is the physiotherapy treatment:
… The patient started experiencing dizzy spells after a physiotherapist stretched her neck about a month ago. The patient describes her dizziness as “like a head rush with disoriented feeling” of about ten minutes duration several times a day.
[47] Keith Fitzsimmons, the physiotherapist who provided a report to the Appellant’s legal counsel, offered an explanation for the onset of dizziness consistent with Dr. Veloso’s diagnosis:
However, during a recommended secondary level treatment program, she had manual traction of the cervical spine for the treatment of headaches, which resulted in the onset of dizziness. This dizziness then prevented her completing a recommended GRTW, although she was also experiencing ongoing difficulty with low pain during this. Since then her dizziness has resolved but her SGI benefits have been suspended, as the dizziness was deemed to be unrelated to her injury. However, the evidence suggests that it was likely related to the treatment she received as part of her SGI sponsored treatment program.
The application of traction was considered to be an appropriate technique for such symptoms. The onset of dizziness, while undesirable, is an infrequent side effect of such techniques. Her therapists’s [sic] response (ie. Stopping traction at that point) was also considered to be appropriate, although she does not appear to have acknowledged the relationship between the application of this technique and the onset of dizziness. The timelines and the chart suggest that such a relationship is more likely than not. [Emphasis added]
[48] Dr. Sibley, the family physician with S.T.A.R. Rehab who conducted an “independent medical assessment” for SGI, could not offer an explanation for the Appellant’s bouts of dizziness but did not believe that they could have been caused either by the motor vehicle accident or subsequent treatment:
… The episodes since February 2003 are less clear. Whatever they are, they seem to have resolved spontaneously and do not seem to indicate any significant underlying disease. She dates the onset of the spells to an event in physiotherapy in January or February 2003 but I do not see support for that in the available medical records. Furthermore, I cannot see how these spells (lightheaded, near fainting, poor concentration, or vertigo, etc.) can be attributed to what appears to
have been very minor physiotherapy measures. Thus I do not think the spells can be attributed to either the MVA or MVA related therapy.
Notably, Dr. Sibley does not express agreement with Dr. Casey’s diagnosis of vertigo, although SGI relied upon this diagnosis and Dr. Casey’s conclusion that it was unrelated to the motor vehicle accident and the subsequent treatment.
[49] On a balance of probabilities, we have accepted Dr. Veloso’s diagnosis that the Appellant was experiencing post traumatic dizziness, which resulted from the application of traction to her neck. Dr. Veloso’s conclusion is consistent with the Appellant’s description of what happened and is supported by Mr. Fitzsimmons’ explanation of the application of traction and its possible side effects. Dr. Sibley did not in his report offer any alternate explanation for the sudden onset of dizziness experienced by the Appellant, nor did he support Dr. Casey’s alternate diagnosis. Our conclusion should not be taken in any way as a criticism of the actions of the physiotherapist who was treating the Appellant through the application of traction, for the reasons outlined by Mr. Fitzsimmons in his report.
[50] It follows from our conclusion that SGI is responsible for the consequences of the episodes of dizziness experienced by the Appellant. The Appellant’s symptoms resulted from the treatment she was receiving for injuries sustained in the motor vehicle accident: see Athey v. Leonati, [1996] 3 S.C.R. 458.
[51] Accordingly, SGI erred in terminating the Appellant’s income replacement benefits. Dr. Casey advised the Appellant to discontinue her graduated return to work until her episodes of dizziness were resolved. As her dizziness was causally connected to her treatment for injuries sustained in the motor vehicle accident, SGI was mistaken in concluding that the reason she remained off work was not related to her motor vehicle accident.
[52] According to Dr. Veloso’s subsequent report, the Appellant was no longer suffering from dizziness by August 26, 2003. However, by that time, the Appellant’s
condition had regressed since her discharge from rehabilitation by Courtside in March 2003, and a further six weeks of conditioning and physiotherapy was required. Eventually, she did complete further rehabilitation with Courtside, which ended on January 23, 2004. At the conclusion of this treatment, the Appellant had achieved a decrease in pain levels and “functionally she is close to meeting her job demands for lifting and carrying.” Although a graduated return to work was recommended, the Appellant had no plans to resume work and believed she still required further treatment.
[53] The further issue we must address, therefore, is whether the Appellant was able to resume the employment she held at the time of the accident once her second stint of rehabilitation was completed by January 23, 2004.
[54] The Appellant testified that there was “no way” she could return to work, because it required standing for long periods of time to help customers and she could not move furniture. She said that such exertions were very painful, and she would need to rest with a hot pad and lie down to recover. If she could not return to work for three hours, she said, how could she do so full-time?
[55] The Appellant’s counsel observed that no one is suggesting that the Appellant is malingering or is manufacturing her pain symptoms. If the Appellant has a low threshold for pain, SGI is nevertheless required to take her as she is. She did not return to work because she could not do so. She might be employable in some other capacity, but could not have returned to her sales position with the retail department store. Accordingly, she seeks reinstatement of her income replacement benefits until her chronic pain symptoms are substantially resolved.
[56] SGI’s position was that the Appellant had been fit to return to work once her first rehabilitation program was completed in February 2003. SGI’s counsel also argued that, following the more recent rehabilitation program, the Appellant had achieved a decrease in pain levels and was again able to return to work. SGI’s counsel did not deny that the
Appellant was experiencing subjective pain symptoms, but argued that these are not impeding her return to work.
[57] It is not disputed that the Appellant sustained injuries to her back, particularly her lower back, in the motor vehicle accident of June 20, 2002. Dr. Sibley suggests that the Appellant would have been at substantial risk for recurrence of lower back pain even if the motor vehicle accident had not occurred, given her previous history of two similar persistent injuries. However, the Appellant had not had any medical interventions for lower back pain for some time prior to the motor vehicle accident. We accept that the low back injury for which the Appellant was treated beginning with her attendance on Dr. Casey on June 27, 2002, was caused by the motor vehicle accident.
[58] The medical evidence filed before the Commission suggested that the Appellant had the functional capacity to return to work once her first rehabilitation program was completed in February 2003. Courtside’s report of January 2003 indicated that the Appellant had made substantial progress and, while she continued to have restrictions of her range of motion and on heavy lifting, she would be capable of completing a graduated return to work. This assessment was shared by Dr. Milne, the rheumatologist who saw her at about the same time.
[59] However, despite improvement during treatment, the Appellant continued to have some restrictions on the range of motion of her lumbar spine. In addition, she continued to experience pain symptoms, especially in the lower back area. Among other things, the goal of a graduated return to work program was to build up the Appellant’s endurance, so that she could tolerate the physical demands of her employment for longer and longer periods. The program was part of the rehabilitation process.
[60] The Appellant was unable to complete her graduated return to work because of the episodes of dizziness she began to experience. She was also complaining of increased pain symptoms resulting from attempting to comply with her work demands; a temporary increase of these symptoms is an expected part of a graduated return to work.
Had the Appellant been able to continue with her return to work, she should have developed additional endurance so that she could tolerate these symptoms.
[61] We cannot ignore the medical evidence that, by the completion of the rehabilitation program on January 23, 2004, the Appellant was substantially able to fulfill the demands of her employment. By objective measures, the Appellant was functionally capable of performing substantially all of her work duties, although she might have required assistance with some heavier tasks. At that point, the Appellant should have been able to complete a graduated return to work. This would not, unfortunately, have meant that she would be free of low back pain.3 The Appellant indicated to Courtside that she had no plans to return to work and believed that she should receive further treatment.
[62] We have concluded that it would have been reasonable for SGI to terminate the Appellant’s benefits following the completion of her second stint of rehabilitation. At the conclusion of those sessions, the Appellant was substantially able to perform the duties of her employment held at the time of the accident.
CONCLUSION
[63] SGI’s decision is reversed and SGI is ordered to reinstate the Appellant’s benefits for the period from April 1, 2003 to January 23, 2004.
[64] SGI shall also reimburse the Appellant for her costs in accordance with subsection 193(11) of the Act, to a maximum amount of $2,500 as prescribed by section 96 of The Personal Injury Benefits Regulations.
Dated at Regina, Saskatchewan, on March 1, 2006.
3
A similar conclusion was reached in H.R. v. Saskatchewan GovernmentInsurance, 2005 SKAIA 011, at paragraph 38.
Peter Bergbusch, Chair
Carol Olson, Commission Member
