DONNA SCHOTTS APPLICANT - v. -, 2003 SKQB 134

2003 SKQB 134 Q.B. A.D. 2002 No. 159 J.C. Y. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: DONNA SCHOTTS APPLICANT - and - SASKATCHEWAN GOVERNMENT INSURANCE RESPONDENT W.M. Rusnak for Donna Schotts C.L. Kraft for Saskatchewan Government Insurance JUDGMENT PRITCHARD J. March 21, 2003 [ 1 ] The applicant appeals the decision of Saskatchewan Government Insurance (“SGI”) to terminate income replacement benefits being paid to her as a result of injuries sustained in a motor vehicle accident on March 9, 2001.

[ 2 ] At the time of the accident, the applicant was not employed although she was in the process of moving from Saskatchewan to Manitoba to commence employment as a waitress at Casey’s Hotel in Lac due Bonnet. The employment was to have commenced on March 10, 2001, just one day after the accident. [ 3 ] The plaintiff received income replacement benefits from SGI pursuant to s. 116 of The Automobile Accident Insurance Act , R.S.S. 1978, c. A-35 and s. 18 of The Personal Injury Benefits Regulations, R.R.S. c.

A-35, Reg 3 which provide that a “non-earner” is entitled to an income replacement benefit if, as a result of an accident, the non-earner is unable to hold employment that he or she “would have held if the accident had not occurred”. [ 4 ] SGI paid benefits for a number of months but then concluded that Ms. Schotts’ inability to work was primarily due to medical and other conditions unrelated to the motor vehicle accident. This determination was made primarily on the basis of a Multidisciplinary Report completed by S.T.A.R. REHAB at the request of SGI.

The report is based on assessments made August 9, 2001, by a rheumatologist/internist, chiropractor, psychologist and physiotherapist. The Multidisciplinary Report includes, as an appendix, the psychological/psychosocial report of the registered psychologist, Dr. Glenn Pancyr. [ 5 ] Under the heading “Psychopathology”, this latter report states: Ms. Schotts is likely clinically depressed and may be experiencing some anxiety driving in a vehicle associated with the motor vehicle accident.

She may be experiencing complex post traumatic stress disorder stemming from non-injury related abuses in her childhood and in adulthood. She also may be experiencing some problems with brain function stemming from very serious beatings she received in her previous relationships. She was hospitalized for broken bones and was beaten in the head often. She used to have nightmares about these attacks. She reports that her parents were both abusive of her and that her father’s abusive treatment put her in a hospital on one occasion.

It is beyond the scope of this brief assessment to be able to provide a differential diagnosis. [ 6 ] The

summary and recommendations portion of the psychological/psychosocial report states: Ms. Schotts experienced serious injuries from her motor vehicle accident. It is unclear at this time to what extent she might have suffered some kind of concussion or mild brain injury. Therefore, it is recommended that she be referred for a neuropsychological evaluation. The neuropsychological evaluation may be complicated by the fact that she has reported having suffered a brain injury when she was four years old as well as having been beaten as a child and adult in which she might have experienced some concussions. . . .

More assessment is required to determine the contribution of the motor vehicle accident to her current symptoms. . . . The effective treatment of this woman’s motor vehicle related symptoms must take into consideration her current social situation and her past experience with multiple forms of abuse. Her treatment will be prolonged and slow in comparison to other individuals who have experienced similar injuries . . . [ 7 ] As was recommended by Dr. Pancyr, a neuropsychological assessment was conducted on October 28, 2001, by Dr. Mirna Vrbancic, a registered psychologist. Dr.

Vrbancic’s report begins with “Reason for Referral” with the stated purpose being “to determine if Ms. Schotts has residual cognitive deficits as a result of suffering a traumatic head injury in a motor vehicle accident on March 9, 2001.” [ 8 ] As part of the assessment, Dr. Vrbancic administered the following tests: Diagnostic Clinical Interview Weschler Adult Intelligence Scale-Revised (WAIS-

R) select subtests administered in non-standard order; American National Adult Reading Test (ANART);

Wide Range achievement Test-Revised 3 (WRAT-3); Raven’s Standard Progressive Matrices; Boston Naming Test (BNT); Word Fluency (FAS); Category Fluency (Animals, Fruits, Vegetables); BDAE-Parietal Lobe Drawings; Hooper Visual Organization Test (VOT); Rey-Osterreith Complex Figure (REY-O); Rey Fifteen Item Memory Test; Wechsler Memory Scale-Revised (WMS-

R) Logical Memory and Visual Reproduction subtests California Verbal Learning Test (CVLT); Halstead-Reitan Trail Making Test; Grooved Pegboard; Wisconsin Card Sorting Test; Beck Depression Inventory II; Beck Anxiety Inventory. [ 9 ] Following a detailed discussion of the test results, Dr. Vrbancic concludes the “Neuropsychological

Summary and Recommendations” portion of her report with the following statement: The accident in question has clearly had a negative impact on her ability to function physically and emotionally, but appears not to have disabled her significantly more than she already was given her known psychiatric and medical history. [ 10 ] In response to specific questions that SGI requested that she address in her report, Dr. Vrbancic states: 1. . . . The neuropsychological assessment indicates that Ms.

Schotts is likely functioning within her premorbid levels of ability, but with persistent, increased problems with concentration and secondarily memory likely as a result of said concussion and/or the persistence of increased pain. Specifically, it is difficult to clearly delineate the effects of concussion on her cognitive functioning, or the effects of pain and psychological distress, but it is believed that the latter mainly accounts for her reported cognitive difficulties. The implication is that if Ms.

Schotts were psychologically stable and not suffering from chronic and variable levels of pain, she would be able to compensate for any possible, mild cognitive changes as a result of the concussion. . . . 4. The accident may have resulted in mild concussive effects that have mainly resolved, as Ms. Schotts does not evidence any consistent cognitive impairments currently with the exceptions of the difficulties noted above that are likely pre-accident . She does however appear to evidence mildly increased distractibility and secondary forgetfulness that is likely accident related in part, and in

part in reaction to her physical and secondary psychological distress, that was also evident pre-injury but has likely been exacerbated as a result of the accident in question. . . . 7. Ms. Schotts appears to be functioning within pre-morbid levels currently, but does have variable attention and secondary memory difficulties secondary to persistent problems with pain and psychological distress which are only in part attributable to the accident in question as they existed as significant variables impacting her functioning pre-injury. . . 10. It is anticipated that Ms.

Schotts will be functioning at her pre-morbid levels of cognitive functioning and be able to return to all of her pre-injury activities once her physical and multiple psychosocial issues are adequately addressed. . .

12. No permanent cognitive deficits are anticipated as a result of the said accident but her cognitive functioning is likely to continue to vary secondary to physical pain-problems and psychological distress, and will continue to be reported as a significant problem until these two contributory variables are adequately addressed. 13. Ms. Schotts has a long-standing history of neck and low back pain, recurrent headaches, emotional instability, and a developmental learning disability possibly as a result of a head injury at the age of four.

All of these variables existed pre-accident to varying degrees, may have been exacerbated by the accident in question, and will clearly have a negative and variable impact on her ability to resume all of her pre-injury activities. [Emphasis added] [ 11 ] The plaintiff contends that it is because of the motor vehicle accident that she is now entirely or substantially unable to perform the essential duties of employment that she would have performed but for the accident. In support, she relies on the medical reports of her neurologist, Dr. L.J. Wine.

On March 21, 2002, after having reviewed the Multidisciplinary Report and resulting SGI letter terminating Ms. Schotts’ income replacement benefits, Dr. Wine sent the following letter to Ms. Schotts. Further to your letter of March 7, 2002, I have reviewed the letter of February 13, 2002 from Petra Petrisor, Personal Injury Representative, SGI. I have also reviewed the assessment at Star Rehab on August 9, 2001. The decision to terminate income replacement benefits is unjustified. I disagree with the medical diagnoses presented by the multidiciplinary secondary assessment.

I have already documented my diagnoses regarding the relatedness of your condition to the motor vehicle accident. Notwithstanding some headaches or back problems in the past, I have noted your ability to function without any significant impairment as a waitress prior to the motor vehicle accident in my medical records. Based on my multiple assessments of your condition, most recently February 15, 2002, in my opinion you are unable to perform any occupation, even regular part time work, let alone waitress work. I trust that this information will be helpful in this matter. [ 12 ] Ms. Schotts was referred to Dr.

Wine by her general practitioner, Dr. Levin. Her first appointment with Dr. Wine was on May 7, 2001. In the resulting report to her general practitioner, Dr. Wine states: Thank you for referring this patient for neurological consultation regarding problems following a motor vehicle crash. Patient History: Age 47 female was a passenger in a vehicle on April 10, 2001. Her brother was driving. The accident occurred ten minutes from Lac Du Bonnie, Manitoba, sixty miles east of Winnipeg. A car approached swerving on the wrong side of the road. The roads were icy. Their vehicle went off the road and into a bank.

Her head went into the window and the car rolled twice. She has no first- hand recollection of this. Her next memory is awakening with her brother unclipping her seat belt and they walked to a farmhouse. They were then taken by ambulance to Pinnoa. The next day, she was seen in Winnipeg and had a CAT scan which was apparently normal. She spent three days in the hospital in Pinnoa and then back home to Hudson Bay. Current Problems: Very bad headache on the right. Pain is localized primarily to the temple. Sharp stabbing pain in the right brow occurs. Aching in the right ear and the right eye is present.

Vision is blurry. Walking is unsteady. There is occasional nausea and vomiting. Food doesn’t taste distinctive. She feels dizzy with staggering and tremors. She has a hard time doing her housework feeling dizzy and unstable. She reports difficulty with memory. Past Health: Head injury at the age of four with residual, mild, occasional headaches. A history of what she terms as a hip injury in 1985 with pain in the low back and left buttock. Social History: She is a restaurant worker. She had a job as a barmaid in Manitoba until the time of the accident.

They are willing to take her back there when she feels better. . . . Diagnosis: 1. Post-concussion syndrome 2. Residuals of facial and brow lacerations and neuropathic pain syndrome 3. Cervical strain injury and myofascial pain syndrome

Discussion and Recommendations: The patient’s symptoms are compatible with motor vehicle crash and above diagnoses. She has not received any physical therapy and basic physical therapy and very gentle exercises would be advised. . . . [ 13 ] Dr. Wine saw Ms. Schotts again on June 6, June 27, July 20, October 16, November 16, and December 12, 2001, and on January 11, February 15, March 28, April 30, May 31, and June 27, 2002. Dr. Wine completed a written report after each visit each showing the diagnosis “as before”. [ 14 ] It is rare to receive such radically different opinions from medical professionals.

In this case, I find that for the most part, the differences can be explained by an examination of Ms. Schotts’ pre-accident medical history and work history. [ 15 ] The motor vehicle accident occurred March 9, 2001. Just a week earlier, on February 27, 2001, Dr. Levin had certified Ms. Schotts as unable to work and provided her with the following letter: To Whom It May Concern: Re: Donna Schotts, Hudson Bay, SK SOE OYO Donna Schotts is a 47 year old female.

She suffers from chronic medical problems which includes hypertension which is well controlled, depression that is stable at the moment and severe chronic lower back pain. The patient expresses her back pain as being severe enough to render her not being able to work. CT scan of her back showed hypertrophic facets at L4-5 and L5-S1. This fits in with a mechanical back pain which she has received physical therapy for. Currently she is on a weight loss program and is due to see a surgeon in October for review of her back condition.

My impression of the patient’s history and special investigations done is that she is probably unable to work due to her chronic back pain. Thank you. [ 16 ] Dr. Levin, who practices in the Hudson Bay Medical Group, is only one of a number of general practitioners that Ms. Schotts has consulted over the past number of years. Her medical files show that in April of 1997, Dr. Collins, also of Hudson Bay, referred her to a neurologist who reported on the consultation as follows: Thank you for referring this 43-year-old lady for assessment of headache.

Headaches have been a problem for her as long as she can remember. Her mother tells her that when she was a small child she used to cry because of severe headaches. These seem to have started after an accident at the age of 4. She fell out of a moving car and cut her head and was unconscious, apparently for many hours. . . . [ 17 ] The consulting neurologist also reported that Ms. Schotts described painful headaches in the left frontal area as a sudden sharp pain that lasts for a few minutes and that these headaches affected the hearing in her left ear. [ 18 ] On September 5, 1996, Dr.

Cronje of Preeceville referred Ms. Schotts to an orthopaedic surgeon to investigate her complaint of back pain. In November of 1997 she was referred to another orthopaedic surgeon for the same complaint by Dr. Leong of Saskatoon. The consulting report of November 26, 1997, states: This 43 year old lady was seen today with pain in the lower back on the left side which has been going on now for about ten or twelve years. She apparently had an injury at work when she did some minor lifting when she worked at Intercon in the mid 80's.

She has had constant pain in this area since then and pain at night as well. . . [ 19 ] On November 18, 1998, Dr. Theron of the Hudson Bay Medical Group wrote the following letter to the Learning Disabilities Association of Saskatchewan: I have been treating this 45 year old lady with chronic lower back pain since September 1998. Lower back pain has been going on for

about 10-12 years. A scan of the lower back revealed facet hypertrophic changes. This lady’s problems are related to facet hypertrophy with facet irritation with mechanical back pain. I also referred the patient to a neurosurgeon for evaluation for facet block. In the meantime treatment consists of conservative treatment with anti-inflammatories. The patient has also been referred to physiotherapy for muscle strengthening exercises and to teach her proper back mechanics and how to look after her back. Currently she is also using a soft back brace for support especially while sitting for long periods.

She is now at school upgrading and has difficulty sitting for any length of time. Donna has decided to take a leave of absence from her upgrading program due to the ongoing back problem. Leave of absence until November 30, 1998. In the meanwhile she will go on with exercises and back program. Your co-operation in this matter would be appreciated. [ 20 ] In March of 2000 Dr. Gelhorn, also of the Hudson Bay Medical Group, referred Ms.

Schotts to an optometrist because of complaints of sporadic periods of blurry vision, diplopia and ocular aching as well as episodes over the previous year of “intense headaches with vertigo and nausea”. In July, 2000, some eight months prior to the motor vehicle accident, Dr. Gelhorn also referred Ms. Schotts to a neurologist, who reported: This 47-year-old right-handed homemaker was seen in the office in neurological consultation on July 25, 2000, regarding visual disturbance and episodic loss of consciousness. Over the last year, she has had episodic loss of consciousness.

She states that the first event occurred while she was standing by the sink. She went to turn. She felt lightheaded. Her vision darkened and then she fell to the floor. She was apparently unconscious very briefly. She was fully oriented afterwards. She has had several episodes, which are quite similar. They are usually preceded by a fast heartbeat. She will feel quite sweaty. Her vision will blur then darken. She does not always have a lot of warning. She will sometimes have an accompanying headache. They can occur at any time. There is no obvious precipitant. She is always upright.

She is not aware of any relationship to meals or her medications. [ 21 ] On February 12, just a month prior to the accident, Dr. Levin referred Ms. Schotts to Dr. Rees with the following request for consultation: Ms. Schotts presents with chronic right ankle pain. She recalls an injury to her right ankle approximately two years ago. I saw her approximately three weeks ago. Examination of her ankle was within normal limits except for antalgic gait. Ankle xrays which include stress views, only showed a subchondral cyst in relation to the medial aspect of the talar dome.

In the meanwhile, we have started with a short period of mobilization followed by physical therapy and anti-inflammatory medications. This has shown not much improvement. Would you please see her for an opinion. [ 22 ] In addition to these and other reports from medical specialists who treated Ms. Schotts prior to the motor vehicle accident, clinical notes contained in her medical records for the period between August 12, 1995, and February 1, 2001, make close to 100 references to complaints of headaches, dizziness, depression or back pain. [ 23 ] Given this medical history, it is not surprising that Ms.

Schotts has a very limited work history. In her initial application for SGI benefits, Ms. Schotts indicated that she worked for two weeks in 1999 as a cook’s helper and prior to that worked in 1984 to 1985 as a meat packer. The evidence established that she was not working at the time of the motor vehicle accident nor for at least two years prior to that time. Indeed, as previously indicated, just two weeks before the accident Dr. Levin had provided Ms. Schotts with a medical report in which he concluded that she “is probably unable to work due to her chronic back pain”. [ 24 ] It is undisputed that Dr.

Wine did not meet or assess Ms. Schotts prior to the motor vehicle accident. It also appears that in concluding that her current inability to work stems from the motor vehicle accident, Dr. Wine did not have the benefit of Ms. Schotts’ complete medical history or prior work history. This is evident from his letter of March 27, 2002, when he states: “Notwithstanding some headaches or back problems in the past, I have noted your ability to function without any significant impairment as a waitress prior to the motor vehicle accident in my medical records.” [ 25 ] Not only is the conclusion in Dr.

Wine’s March 27, 2002, letter based on an erroneous understanding that Ms. Schotts was actually working as a waitress prior to the motor vehicle accident, it also appears to have been based on significantly deficient and inaccurate information regarding her prior medical history. In his initial report dated May 14, 2001, Dr. Wine refers to Ms. Schotts’ past health as follows:

Past Health: Head injury at the age of 4 with residual, mild occasional headaches. A history of what she terms as a hip injury in 1985 with pain in the low back and left buttock. The pre-accident medical reports quoted above establish that Ms. Schotts’ pre-accident headaches were chronic and that they were neither mild nor occasional as described by Dr. Wine. Dr. Wine is no doubt only repeating what was reported to him but nevertheless, the information he has relied on is not only incomplete but clearly wrong.

The extent of her pre-existing low back and other pain is also clearly under reported. [ 26 ] Based on the totality of the evidence, I am satisfied that Ms. Schotts’ substantial medical problems and current inability to maintain employment do not result from the March, 2001 motor vehicle accident. To the contrary, I find that Ms. Schotts has failed to establish that she was capable of functioning as a waitress immediately prior to the motor vehicle accident.

Although she may have secured a job as a waitress immediately prior to the accident and have had every intention of trying to commence such employment, the evidence suggests that she would not have been able to carry out her duties of employment. Based on all of the evidence, it is more probable that even if the motor vehicle accident had not occurred, Ms. Schotts would not have been able to sustain employment as a waitress for any reasonable period of time. [ 27 ] Her application for continued income replacement benefits is therefore dismissed. J.