2005 BCSC 88 Sanders v. Clarica Life Insurance Company

Before: The Honourable Mr. Justice McEwan

Reasons for Judgment

Counsel for the Plaintiff	T. Napora
Counsel for the Defendant	B.G. Baynham
Date and Place of Trial/Hearing:	February 11,12,13, 2004 Nelson, BC February 18,19,20,23,24, 2004
	Vancouver, BC

[1] The plaintiff has brought action on a group disability insurance policy she held with the defendant, seeking a declaration of entitlement to long term disability benefits on the basis that she is “totally disabled” within the definition of the insurance policy. This relief is sought within a more comprehensive claim seeking punitive and aggravated damages arising out of allegations of “bad faith”. The plaintiff originally issued a jury notice, but on March 14, 2003, Mr. Justice Hutchison ordered the issue of entitlement to benefits severed from the “bad faith” issues and heard by judge alone, essentially on the basis that Rule 10(1)(b) applies to “entitlement”, in that the sole or principal question at issue is one of construction of a written contract.

[2] The contract reads, in part:

“Long Term Disability Insurance Provision

Definitions

For a member with a period of association of less than 2 years “totally disabled” means that the member has a medically determinable physical or mental impairment due to injury or disease which prevents him from performing the regular duties of any occupation, in any setting:

1. for which he has at least the minimum qualifications, and

2. that provides an income that is equal to or greater than the amount of monthly disability benefit payable under the provision, adjusted annually by the Consumer Price Index.

The availability of work for the member does not affect the determination of “totally disabled”.

[3] The plaintiff became a party to this agreement as an incident of her employment as an agent in a financial services business in Nelson, British Columbia. This business was an agency for Mutual Life and/or related companies. It was ultimately taken over by Clarica or companies related to it. The plaintiff purchased an interest in the agency (which she described as a partnership) for some $65,000. Differences arose between the plaintiff and the other people involved in the agency which ultimately led to litigation against the plaintiff’s two local partners and Clarica Investco Inc., an entity related to the defendant in this case.

[4] That relationship commenced June 15, 1998 and ended about May 18, 1999, when the plaintiff’s agency with Mutual Life was cancelled.

[5] The plaintiff applied for long term disability benefits under the insurance contract citing “pain in neck and low back and depression”, as the basis for her claim. This claim was supported by a statement by her family physician, Dr. Andrew Murray, citing “stress and depression” as his primary diagnosis, “back and neck pain” as a secondary diagnosis, and “work stress” under “other contributing factors/ complications”. Dr. Murray’s statement suggests that as of May 12, 1999, the day he saw the plaintiff for these specific concerns, she was disabled. He noted that the plaintiff had suffered depression beginning in 1995. Under “prognosis” he noted that the plaintiff was “under care of psychiatrist (Dr. A. Piver) who will decide on RTW (return to work)”.

[6] In a letter to Dr. Murray dated July 29, 1999, Dr. Piver described the plaintiff’s “Presenting Problem”:

She has had a very stressful year with her daughter leaving, her husband considering separation, and what appears to her like a grave error in her recent business investment and venture. This is multiplied by the fact that she borrowed against her home to make this investment. She started to feel quite overwhelmed by the beginning of 1999 and quite terrified. This coincided with a re-emergence of initial intermittent and terminal insomnia, significant increase in her neck and back pain, ongoing intrusive obsessive rumination about what happened with feelings of anger, guilt, remorse and great anxiety. She also has been experiencing diminished motivation, diminished interest, diminished libido as well as feelings of hopelessness. She has been thinking about death on and off since a significant disappointment with both her health and her first husband shortly after the birth of her last child but this has become even more prominent recently. Suicide is not an option because of her values about it being a sin and most of all it would be terrible for her children if she were to do this. Her anxiety includes the possibility that her husband may leave her and that, with her history of disability, no one else would ever employ her, and she will become dependent on welfare.

The other problem has been a perceived significant impairment in concentration and memory that seems to coincide with particularly the increased dosages of Amitriptyline. It was so bad at one point that she was having to write down everything that she did or heard in conversations because she would otherwise often not remember anything about them.

[7] On March 31, 2000, the plaintiff was notified that her claim for long term disability benefits had been approved effective November 24, 1999. She was also told that:

Your claim has been approved for your condition of depression only. The medical evidence provided regarding your neck and back pain does not support that this condition is of a severity that is continuously and totally disabling.

The plaintiff was advised that her ongoing eligibility would be assessed in light of “periodic medical updates from your specialist”.

[8] On May 15, 2000 the defendant wrote Dr. Piver to advise that it was reviewing the plaintiff’s long term disability claim, and asking a series of specific questions about his diagnosis, the plaintiff’s therapy, medications, and physical and occupational capacity.

[9] Dr. Piver responded on July 18, 2000. He described the plaintiff’s brief stay in hospital in April of 2000 to help her get over “very suicidal” feelings. He went on to say:

She has also engaged in psychotherapy with Dr. Michael Brownstein who has become her main provider. … I cannot make any comment on how she has responded or how many sessions Dr. Brownstein thinks will be useful. He prefers to keep arms length from the disability issue in terms of confusing a role that is intrinsically contradictory in terms of psychotherapy. I believe the kind of therapy he usually provides is psychodynamic in nature.

In terms of the patient’s current level of activity, I have described it above in that she is fundamentally housebound. In terms of objective features, the patient’s recall of three objects was good. Her digit span was also normal. She made a couple of errors on serial sevens which would be quite unusual for her in that she had excellent math skills. These errors included her clearly losing track of where she was so I believe that the formal testing did elicit some problems with concentration.

In terms of other kinds of work possible, the patient starts to feel quite panicky when she thinks about going to another job and she has been trying to imagine it. She imagines herself not being able to learn and remember new skills and losing the job very quickly. She feels quite embarrassed about the whole idea of disability, the litigation and the depression itself. At this point I agree that she would have difficulty in learning and coping with transition to another occupation, as well as, medically, being unable to do her own job, partially because of the very bad experience she has had with it. At this stage, her unresolved major depression, as well as a high degree of anxiety related to her recent experience in the insurance field, make it very difficult for her to either learn a new occupation or return to the one that she had.

[10] The defendant sought Dr. Brownstein’s clinical notes. These included a May 2, 2000 entry:

Joann came in for a follow-up appointment today. She actually was hospitalized for a couple of days in April because of depression. She says she has been going downhill. Her sleep is very disturbed. She was wondering whether she needed lithium and will discuss any possibility of a bipolar condition in her next appointment as we didn’t have time today.

She filled me in on a lot of family background. Her father was an alcoholic, mother never left him, but was extremely bitter, but now mother is 80 years old and feels very lonely. Her father died when he was 58. She feels that Nelson has nothing for her. There are no employment possibilities, and she would like to move, but her husband and son are very happy here. She is very bitter and angry.

[11] And this, May 16, 2000:

Joanne said it was hard for her to come in for the appointment as it’s hard for her to leave the house. We talked about what she does and she talked about her interest in the stock market. Every day she checks her portfolio and she’s done quite well with it. I encouraged her to apply for some jobs and also to put her resume in around town. She feels that if she were working in a job that she liked it would make her feel a lot better. We started to discuss her family conflicts with her husband and her son but didn’t get a chance for any resolution on this. We’ll discuss it more at our next appointment. I encouraged her to come in on a weekly basis.

[12] And this, May 30, 2000:

Things are heating up in Joanne’s court case. She now has a date set for the beginning of August. She is very concerned that she won’t be a good witness as her memory is poor and she might fall apart on the stand and not be credible. She told me some more details about what went on in the business and how she was sexually harassed by her boss. She feels guilty about this and feels that she might be responsible because she did agree to socialize with him. However, she felt forced to maintain good relations. She has not told her lawyer about this. I have encouraged her to do this as I believe it would help her case. I received a letter from her disability insurance asking me to fill out a form which I will pass on to Dr. Piver as I would like to stay at arms length from these applications.

[13] And this, June 20, 2000:

Joanne talked today mostly about her back pain. She ruptured a disc about seven years ago and has been in pain ever since. She says the pain is quite severe; it is always there. It tends to get worse throughout the day. Even the simplest of household chores make the pain much worse. She has had to stop doing the vacuuming altogether and her husband and son now vacuum the house. Any heavy lifting makes things worse and she suffers for days. She says she exercises as much as she can. She does a brisk walk for about 45 minutes a day and she does 15 minutes of gentle stretching and strengthening exercises for her stomach and lower back. She feels she is exercising optimally and anything more would just make things worse.

She has consulted two orthopaedic surgeons, the first was Dr. Schweigel and he recommended surgery and said that it would be 70 to 90 percent chance of success, the second was Dr. Hunt and he said the risk was too high and he wouldn’t recommend it. Her family doctor, Dr. Murray, went with Dr. Hunt and felt the risk was not acceptable. Dr. Piver concluded the same thing when he saw her. She is confused and doesn’t know what to do. She has been seeing the pain specialist in Trail for her lower back pain which radiates down her left leg. She has also now developed a quite severe neck pain which she believes is due to facet joint deterioration and she has been receiving anaesthetic shots and also cortisone shots which do provide some temporary relief. She is quite tempted to go back to Dr. Schweigel and have the operation but she doesn’t know whether this is really the best thing or whether she is even in good space to make a decision as she is still very depressed and contemplates suicide on a regular basis.

Regarding the disability she is somewhat uncomfortable about seeing Dr. Piver because though she liked him she felt that he did not appreciate the severity of her depression and would not fill out the disability form in her favour. She is on the waiting list to see Dr. Magee for him to fill out the form but he has not yet called her with an appointment.

[14] On September 8, 2000 the defendant notified the plaintiff that it wished to seek a second opinion. On October 3, 2000 the plaintiff saw Dr. Semrau for this purpose. On November 2, 2000 he provided an extensive report on the basis of which the defendant terminated the plaintiff’s long term benefits. The letter notifying her explained this decision in the following terms:

You are off work due to depression. The medical information provided from Dr. Brownstein indicates that there has been an improvement in your condition. You attended an independent Medical Examination (IME) on October 30, 2000 with Dr. Semrau. The IME report indicates that there were no significant findings of decreased concentration or memory levels. The findings also did not support any cognitive impairment. Dr. Semrau agrees with Dr. Brownstein that it would be quite beneficial for you to return to employment, other than the position of an insurance agent. The medical information provided from your treating physician, in addition to the IME, does not provide any significant limitations that would prevent you from working.

It is our decision to terminate your LTD benefits effective November 30, 2000, as the medical evidence does not support that your condition is of a severity that would prevent you from performing an alternate occupation within your education, training and experience.

To avoid hardship to you due to our recent decision enclosed is a lump sum payment, equivalent to one month of benefits, up to December 30, 2000. These funds are to allow you time to evaluate your employment options.

[15] The plaintiff submits that she was in fact "totally disabled" at the time of this decision.

III

[16] The plaintiff gave evidence. She is 53 years old. She was born in Kamloops and grew up in Keremeos where she graduated high school in 1969. She was married in 1969 to Gary Sanders. They had three children, now 29, 24 and 22. The marriage ended in 1988. At first the children remained with the plaintiff, but after some time the eldest resided with Mr. Sanders in Keremeos while the younger two lived with her, in the Lower Mainland.

[17] The plaintiff worked for some time in a number of clerical and secretarial positions. She was working in a “Muffin Break” when she met Steve Legros, who moved in with her in 1989. At the time, the plaintiff was anxious to start her own business, and had about $80,000 to invest. After some looking around, she and Mr. Legros moved to Nelson where they bought a house and a pizza franchise. The plaintiff invested the bulk of the money and the franchise was put in her name. They worked together in the business for several months following which Mr. Legros withdrew, and stayed at home helping with the children, while the plaintiff “stepped up, and took over” as Mr. Legros put it. The plaintiff worked long hours, six days per week. Mr. Legros would help out when it was particularly busy. The business thrived, and in 1991 the plaintiff and Mr. Legros were able to sell it at a profit.

[18] After a brief hiatus, the plaintiff worked at “Waite's” newsstand in Nelson, while Mr. Legros did some construction work and took work as a casual letter carrier. They purchased “Waite's” in the fall of 1991. They both worked in this business, putting in long hours there as well.

[19] The plaintiff injured her back while she operated "Waite's", and also had leg surgery. The back injury interfered to some extent with her ability to do heavier work.

[20] “Waite's” was sold in 1994. The plaintiff said she did not want to sell it, but that changes in the treatment of capital gains dictated its disposition. The plaintiff and Mr. Legros made money on the sale and they built a house. The plaintiff took some accounting courses then went to work at Wal Mart as a cashier in the summer of 1995. She was promoted to a customer service manager but did not like the work and quit in 1996. In 1997 the plaintiff took several courses in financial services and tax preparation. In early 1998 she was circulating a resume, seeking employment using those skills.

[21] The plaintiff said she found her back injuries to be a problem when she worked at Wal Mart, where it limited her ability to do any heavy lifting. She said she felt it was time to move in a different direction.

[22] The plaintiff then went to work at Clarica where, as I have noted, after investing in the business, she came into conflict with the other principals and ended up in litigation. At this point she saw Dr. Murray, who diagnosed her as disabled.

[23] The plaintiff says that she now finds office work difficult because she cannot concentrate. She has done a little work at a tire store in which Mr. Legros now has an interest, but found it impossible. She abandoned a course in Canadian securities for the same reason. She says there are now days when she cannot turn on the computer or pick up the telephone.

[24] The plaintiff says her activities with Mr. Legros and her children have been dramatically curtailed.

[25] Mr. Legros testified that the plaintiff’s mental state was bad from March of 1999 on, and that she suffered neck and shoulder pain. He said there had been problems between himself and the plaintiff in 1998 over the children, and that he actually left home for a few days. He said she was very depressed and upset by the Court proceedings initiated against her partners, and that she would react by stopping eating, staying in bed and demanding more medication. He said she would become forgetful.

[26] He said that the plaintiff worked hard at "Waite's" but that, after she hurt herself there, she could not lift as much. He says that now if she does even minor housekeeping she ends up in bed for days. He said the plaintiff used to do the cooking all the time, but that she now rarely does anything. He says that since she had her insurance agent’s license “pulled”, she does not want to be around anyone but stays at home by herself. He says she has no stamina and cannot do anything for longer than about ten minutes.

[27] Mr. Legros acknowledged that the plaintiff suffered lower back problems throughout the time he knew her and that she had periodically suffered from depression. He recalled that the leg shortening operation in 1993 helped her back. He said she had been really upset after she hurt her back, but did not know if he would call it depression.

[28] Mr. Legros testified to problems with over-medication and alcohol the plaintiff had had in the years since her benefits were terminated and said he has begun to administer her medications. He said he thought the plaintiff could do the accounting at his tire store.

[29] The plaintiff’s son Kevin testified that he recalls the plaintiff being energetic and up-beat when he was younger, and while she was working at the Pizza store and at “Waite's”, and he recalled her being good with the public. He said that since the end of high school (1999) his mother has been very distressed and difficult to talk to, with serious mood swings. He said he had noticed that the plaintiff’s short term memory is lacking and that it can be frustrating to communicate with her as a consequence. He says that if she does simple chores like cleaning a bathroom she will end up in bed for two days. He says she has become anti-social and does not want to be around anyone.

[30] Lindsay Sanders, the plaintiff’s daughter, testified that her mother was once a very normal, friendly, social person and that her friends liked to come over to their house. She said in the fall of the year she was in grade 10 her mother changed and became irritable and hard to be around. She would be up all night, at times, and at other times sleep all day. She said the plaintiff would become very angry at small things. She said she went from having a loving relationship with the plaintiff to one where the plaintiff said she could not do anything right. Lindsay moved away to live with her natural father in this period, but says she would not have done so if things had not been so difficult with the plaintiff.

[31] Lindsay said her mother is now so distracted she drives dangerously, and that she has gone from having a good memory to being a person who is forgetful of anything that is not negative. She says the plaintiff will now blow anything bad right out of proportion.

[32] She says the plaintiff’s physical appearance has changed and that while she used to be “upright” and competent, she is now “slumped” and looks twenty years older. She says her friends do not want to go over to the house because she has become quite “inappropriate” and no longer has a proper sense of social boundaries. She says the plaintiff has become very difficult to be around and that she is now someone for whom making a cup of tea is “a big deal”.

[33] In cross examination Lindsay said that if her mother was depressed when she was growing up, it was not on the present scale. She recalled a time when her mother was taking accounting classes and was very positive and proud of her grades.

[34] She recalled when the plaintiff started work for Clarica in June of 1998, and said she was happy about her position. Her relationship with the plaintiff deteriorated later in that year, however, and by December she was living in Keremeos. She said that, leading up to that rupture, the plaintiff had become irritable and angry all the time.

[35] A witness named Tom Smyth testified that he has lived in Nelson for seven years and worked with Steve Legros for almost all of that time. He knew the plaintiff both before and after 1999. He said that before 1999 she was a focussed, “with it”, intelligent woman who socialized normally. After 1999 he said she was depressed and withdrawn and seemed to lack self confidence. He said he thought her condition has been relatively constant since then. He thought she would have the ability to do the books and clerical work if she were physically able.

[36] The plaintiff’s evidence and her medical records disclose a long history of neck and back pain dating back some 15 – 20 years, as well as a history of depression going back intermittently to 1984. Her past history included disc problems in 1981 and 1991 (relating to the lifting incident at “Waite's”) and surgery in 1993 to shorten her leg to correct a pelvic tilt that was causing back problems.

[37] In 1995, Dr. Murray described both low back pain due to disc degeneration and a chronic cervical condition, with pain in the right neck and shoulder. He also described depression and insomnia.

[38] On March 26, 1996 the plaintiff saw Dr. Schweigel, an orthopaedic surgeon, who diagnosed moderate osteoarthritis at L5-51, and indicated a spinal fusion might help.

[39] In the two years April 29, 1996 to April 29, 1998 the plaintiff had a number of treatments by doctors to whom she had been referred by Dr. Murray, her family physician. These are noted by Dr. Murray in a letter to the defendant dated March 3, 2000:

- Treatment and Medications during this period: Amitryptyline 250 mg hs; Tylenol 500 mg 2 qid; Naproxen 500 mg bid; traction helped for a short while, physiotherapy; Voltaren 50 mg tid; local anaesthetic injections C4-5, electro acupuncture; Maitland mobilization of cervical spine; counselling; Flexeril 10 mg qid; injections low back local anaesthetic and cortisone.

- Other physicians treating her during this period.

- Dr. R. Perier regarding perioral dermatitis

- Dr. M. Whitehead pain clinic specialist; low back and neck pain

- Dr. D. Krushelnycki pain clinic specialist; low back and neck pain

- Dr. A Piver psychiatrist: mood problems partly due to ongoing back pain problem

- Dr. P. Tweedale gynaecologist; abnormal pap smear

[40] On March 3, 2000 x-rays taken to explore the plaintiff’s complaints of chronic back pain showed some degenerative disc disease.

[41] Internal memoranda kept by the defendant include the following, from August 16, 2000:

Will have to make decision independently given that there is no pre-existing on these policies and therefore must consider both disa.

According to forms completed by client’s gp primary dx [diagnosis] was stress and depression with secondary back and neck pain. Client is taking meds and receives psycho tx [treatment] every 3 wks. Limitations are listed as severe for sitting, bending and lifting (max 10 lbs) and moderate for climing [sic] GP notes that psychiatrist will determine rtw. According to EPQ completed by the psych. Client had a gaf of 50 in Jul 99 and is unable to rtw due to ongoing neck and back pain. According to psych referral from July 99 client had a gaf of 50 at that time and meds were changed due to a reaction. According to most recent letter from clients gp client stays at home most of the time and does not do heavy housework, she can stand and walk but not fast and has to take a break every 15 min

When sitting, her neck and back wake her up 3X a week. CT scan is planned for Mar00. Will wait for Jennifer to get back to me before making a final decision. Considering an admit given confirmed depression and appropriate tx although now major dx preventing rtw is neck and back pain. 210300, ktb

Sent email to Jennifer for final decision…

Recd response from JHD, they are approving LTD claim for psych problems only. Will proceed with admit and set f/u for 2mths since ltd is writing to psych for more med. Reassigning to Kelly as it is in Eng. Staff case. 100400, ktb

[42] Since the defendant terminated the plaintiff’s benefits there have been a number of further medical assessments and developments.

[43] The plaintiff was referred by the defendant to Dr. L.M. Anderson, a psychiatrist who reported on December 20, 2001. His summary was as follows:

It seems that this woman was functioning very well until she injured her back and then had to give up her business. She then invested in the insurance business and for reasons that are unclear to the patient her co-workers “wanted me out” and would not return her money. The factors that occurred during the work situation were obviously extremely stressful and caused the patient to fall into a serious depression. This depression has not improved and the patient has been suicidal from time to time and at this time continues to feel that her life is over.

In my opinion, this woman is unemployable and it would not be possible for her to work at any kind of job as long as she remains depressed. The patient is clinically depressed and profoundly so. The psychiatric condition is the major reason or her unemployability but she also has back pain and neck pain that will interfere with her employability.

I would classify her as being disabled and would suggest that this be reassessed in about a year’s time after effective management of her depression to see if she may become employable.

Hopefully, his issue can be resolved in the near future so the patient can get on with her life.

In order to answer the two questions specifically I would say that Ms. Sander’s present condition is a depression and the diagnosis would be “An adjustment disorder with depression.” She also has anxiety and panic disorder.

The severity of the conditions are severe and disabling to the point that the patient is not able to work. With adequate treatment this may change.

The second question is Yes. Ms. Sanders is disabled from employment at this time. I would suggest that she not be able to return to work for several months and that disability may well change over the course of time if she receives adequate treatment and her depression lifts. This should be reassessed in about one year’s time.

[44] The plaintiff was admitted to Kootenay Lake Hospital, at Nelson, June 13, 2002:

This 50 year old lady brought herself to the Emergency Room complaining of feeling unsafe at home. She describes longstanding depression exacerbated by her mother’s demise a month ago in Penticton. She had not felt particularly worse since her mother died up until a few days ago. She has had increasing insomnia since. Today she has felt “hopeless”. She is contemplating taking all her pills at home. She has no specific intent to commit suicide but these intrusive thoughts are accumulating and she feels they may become overwhelming.

[45] The plaintiff was admitted to a detoxification centre in Kelowna in August of 2002 for 10 days for treatment of an over-medication and alcohol problem.

[46] The plaintiff was treated by Dr. Brownstein 48 times from March 21, 2000 to February 2, 2004, to little apparent effect.

[47] On June 10, 2003 the plaintiff saw Dr. R. Magee at the Trail Regional Hospital who linked her depression with litigation.

[48] On October 21, 2003 the plaintiff saw Dr. McIntyre, a psychiatrist in Penticton, on a referral from Dr. Murray. He noted her history briefly, in the following terms:

According to the patient, who appears to be quite depressed and is clearly psychomotor retarded, she has been having a lot of stress since 1999. She lost her share of her mutual fund business. They were involved in a court action and this was not settled in her favour. She was also on disability and then the disability was cut off after she saw Dr. Semrau. After that she saw one doctor after another doctor, and she is feeling quite frustrated. At this stage she feels her depression is not getting better, and this has been since June of 1999.

[49] His conclusions were summarized as follows:

In dealing with Joanne it is quite clear that she is significantly depressed, and she has all the classic symptoms of depression with psychomotor retardation, anatonia, and is clearly melancholically depressed. At this stage it is clear that she is not responding to her current medication regime, and my first recommendation was that we should strongly consider giving the patient ECT. I pointed out to her that there are some risks involved with ECT, but in my opinion this would clearly be the best treatment for her depressive illness, despite the fact that she has some neck symptoms and back problems which I think the anaesthetist should be aware of.

The second option I would recommend is to gradually wean her off Trimipramine, Surmontil and benzodiazepines, and to start her on a combination of Remeron which can be increased to 60 mg daily, in combination with Effexor 375 to 450 mg daily. If this is not an option, we may want to consider adding an SSRI which does not inhibit 2D6, for example, Celexa, to the tricyclic antidepressants. However, my first recommendation would be electroconvulsive therapy.

At this stage, it is quite clear that this patient is severely depressed and not fit for work. I have encouraged her to discuss this with you and Dr. Brownstein. Should there be any problems, please do not hesitate to contact me.

[50] Ms. Sanders did attend eight ECT sessions with some limited improvement.

VII

[51] Dr. Brownstein, Dr. Anderson, Dr. Aitken, Peter Roy, Dr. McIntyre, Dr. Oliver and Dr. Semrau were called as witnesses, at the trial.

[52] As I have set out earlier in these reasons, Dr. Semrau’s opinion is at the heart of this case, in that his assessment was the basis for the defendant’s denial of the claim. Dr. Semrau’s evidence in cross-examination tended to reinforce the impression given by his opinion. He appeared to have thoroughly considered the materials put before him and to have fairly applied his expertise and training to his consideration of the plaintiff’s condition, while carefully delineating the limits of that expertise.

[53] Dr. Semrau’s critique of the report prepared by Dr. Joy was, moreover, borne out by the cross-examination of Dr. Joy. There were a number of inconsistencies, betraying a rather uncritical approach, that substantially weakened the reliability of Dr. Joy’s opinion that the plaintiff was totally disabled with a major depression as of May of 1999.

[54] Similarly, Dr. Semrau’s critique of the evidence of Dr. Anderson tended to be borne out in Dr. Anderson’s cross-examination. Dr. Semrau observed:

On page four, Dr. Anderson concludes “this woman is unemployable and it would not be possible for her to work at any kind of job as long as she remains depressed” and further comments to similar effect. This is a very broad statement which is unsupported by the evidence available to Dr. Anderson. It fails to take into account different types of possible occupations. It feels to take into account the specific relationship between symptoms, functional capacities and particular occupations. It makes the sweeping and completely unfounded statement that she would be unable to work “as long as she remains depressed” whereas we know that there are hundreds of thousands of Canadians working every day who are experiencing some degree of depression – it is only those who are severely depressed who are generally incapable of working.

Dr. Anderson is also somewhat inconsistent, noting near the bottom of page four and at the end of page five that she should be reassessed in about a year’s time to see if she may become employable, but on the other hand on page five mentioning a timeline of several months of expected further disability.

Dr. Anderson fails to critically examine possible questions of symptom fabrication or amplification, either intentional or unintentional, in the context of a medical-legal assessment in which there are various financial and psychological gains to be achieved by maintenance of disability status. This is a particularly glaring deficit in the light of some contradictions such as her relatively good cognitive functioning as observed during the interview, against her claims and his conclusions of severe symptoms and disability.

Overall, I consider this report to be seriously deficient in scope, detail and level of reasoning, judged by the standards of employment disability reports generally and even to some extent judged by the standards of ordinary clinical reports.

[55] Dr. Anderson explained his methods in terms of “rapport” and “teasing things apart” but he appears to have rather uncritically passed along much of what the plaintiff said and found that consistent with depression. To be fair, however, Dr. Semrau’s criticism of Dr. Anderson's failure to address “symptom fabrication or amplification”, while it may be methodologically valid, is of little moment in the circumstances. Dr. Semrau did turn his mind to such considerations and was “unable to observe any particular tendency to [symptom magnification]” in his November 2, 2000 report. There is also the fact that, for reasons I will come to, I have found the plaintiff’s evidence and that of her collateral witnesses generally credible, notwithstanding Dr. Semrau’s impressions of the plaintiff on two occasions. I am therefore able to accord Dr. Anderson’s opinion some weight in the circumstances, despite his rather casual approach to credibility.

[56] Dr. Brownstein had been clear throughout his therapeutic relationship with the plaintiff the he did not see assessment for litigation purposes to be consistent with his role in attempting to help the plaintiff. He confirmed her near-constant focus on the injustices done to her, and the litigation related to them. He acknowledged that, over time, she had become over-medicated, and that his treatments had not been particularly effective. He felt the plaintiff’s cognitive abilities were “side-tracked” by her preoccupation with the litigation and said he was hopeful she would recover when it ended.

[57] Dr. McIntyre saw the plaintiff in October, 2003 and recommended ECT treatment. He accepted what he was given and what he was told by the plaintiff as the case of “treatment resistant depression” at the point where he was asked to deal with it.

[58] On the orthopaedic side of things, I have Dr. Aitken’s report of March 23, 2001 in which he said:

This lady presents as a rather complex pain and disability problem. There are many things going on in her life, as has been outlined in the chronology of her history.

Nevertheless it does appear that she has had a chronic problem with her lower back since the early 80’s, culminating in an acute episode of pain in 1991 and further recurrences of the pain off and on since then.

Dr. Schweigel suggested the possibility of lumbosacral fusion back in 1996, and I would agree with that. The problem with lumbosacral fusion is that it is held to be a poor operation where there are other factors involved, but in this case it is often hard to determine which comes first, the cart or the horse – the depression or the back pain.

Although Dr. Hunt and Dr. Coghlan have felt that surgery is not indicated, while there other [sic] factors to be considered, in this particular case, I feel that it would probably be helpful for her in the long term to undergo a one level lumbosacral fusion once all the other factors are dealt with.

It is true that she has (had) a significant number of psycho social stressors in her life which have lead to fear, anxiety and feelings of helplessness, but hopefully once the issue regarding her unhappy investment/employment venture is resolved, and once the issue regarding disability claim has been resolved, her level of arousal will change.

Is this woman now disabled?

From the orthopaedic point of view on the day that I examined her she was not totally disabled, but clearly from the history she has had very unrelenting recurrent low back pain as well as episodes of neck pain.

Certainly there is good enough evidence in the lumbar spine that there is increased activity on the bone scan, coupled with advance degenerative disc disease at the lumbosacral level, would suggest there is a primary organic basis for her pain.

Given the history of recurrent episodes, I feel it would only be a short period of time before she would once again develop recurrent back pain and be disabled again until something definitive is done about the problem.

[59] Dr. John Oliver testified. He was questioned largely on his observations of the plaintiff on August 11, 2003, although it did not, in my view substantially affect the weight to be given to his opinion which he summarized in his report as follows:

In my opinion, Mrs. Sanders suffers from a condition of chronic back pain and neck pain due to the effects of osteoarthritis of the facet joints of the lumbar spine and the facet joints of the cervical spine. I believe that she can be described as generally physically de-conditioned. In my opinion her condition of the facet joints prevents her from pursuing physical activities.

I have been asked to comment on Mrs. Sanders functional capability in regards to the occupation she participated in before the commencement of her disability.

Mrs. Sanders was employed last as a partner in a company selling life insurance and mutual funds. Though the physical activities required for this occupation may have been modest, in my opinion Mrs. Sanders current condition of back pain would disable her from pursuing that type of occupation. Therefore, it is my opinion that she would not be capable of working in the occupation she participated in just before her disability commenced.

VIII

[60] In summarizing the various opinions of the medical and therapeutic witnesses, I have barely touched on the extensive detail - originally emanating from the plaintiff - which is seemingly amplified by repetition in the various reports. In cases of this kind, it is important to distinguish what is helpful opinion evidence within the expertise of the professional giving the opinion, and what is simply a repetition of what the plaintiff has to say. In general, treating physicians work from the premise that the person they are treating is telling the truth. It is not part of their function to assume mendacity. This renders the species of report that amounts to an assertion that “this is what the patient suffers from, if what she says is true” of little practical use until the underlying facts are established by evidence in the courtroom. A somewhat different problem is created by the species of report that fails to explain observations (or evidence) inconsistent with the opinion. In such cases, the expert sometimes slips into advocacy, consciously or unconsciously. I think that the report of Dr. Anderson suffers from the first deficiency, and Dr. Joy's from the second.

[61] The plaintiff’s evidence was tested in the courtroom, as was the evidence of her son, daughter, spouse and her spouse’s business partner. While one must approach such evidence with caution, I found the plaintiff’s collateral witnesses credible to the effect that, about the time of the plaintiff’s disappointment in the financial services business, her life and relationship to people and her surroundings changed dramatically. They all described a person whose ability to function, including her physical stamina and her mental abilities and social skills, is quite seriously impaired.

[62] The plaintiff’s own evidence respecting her condition is somewhat more complicated. It is clear that she was a competent person, who got good grades in high school, completed a number of accounting, financial planning, and insurance courses, ran two successful businesses, and had retail and customer relations skills and computer skills. These occupations and achievements occurred over a background of periodic episodes of depression and neck and back pain. These required her to be off work for various periods of time. She has had her share of vicissitudes and has had difficulty getting past her feelings of anger, frustration or disappointment over a number of these events.

[63] I think it clear from her own evidence that the plaintiff perceives her situation in quite dire terms, and that when she is not completely focussed on her difficulties she functions at a somewhat higher level. (The portions of her examination for discovery in evidence, I think, illustrate this). What this all means in medical terms is cogently summarized in the opinion of Dr. Semrau, which I have little difficulty accepting, within its limits.

[64] The defendant submits that the ultimate issue is simple, and that the case turns on the relatively narrow question of whether the plaintiff was able to “function in the work place” in November of 2000. I accept that the relevant date for assessment is the date of termination (see: Shewchuk v. London Life Insurance Co. (1996), 38 C.C.L.I. (2d) 282 (B.C.S.C.); Ritch v. Sun Life Assurance Company of Canada (1998), 8 C.C.L.I. (3d) 228 (Ont. Ct. (Gen. Div.)); Verbong v. Great-West Life Assurance Co. (2003), 171 Man R. (2d) 161.

[65] The defendant further submits that:

Based on Dr. Semrau’s report the benefits were terminated. In obtaining Dr. Semrau’s report and putting that report into evidence the Defendant has satisfied the evidentiary burden to assert facts that are more than sufficient to meet the prima facie case made out by the Plaintiff. Accordingly, if the court accepts the expert opinion of Dr. Semrau, as it is urged to do by the Defendant, the action must be dismissed even though there may have been evidence led at trial which, if accepted by the court, was sufficient to establish total functional disability at some future date.

[from the defence submission]

[66] I do not think this is quite so.

[67] I return, first of all, to the definition section of the contract:

“Long Term Disability Insurance Provision

Definitions

1. for which he has at least the minimum qualifications, and

2. that provides an income that is equal to or greater than the amount of monthly disability benefit payable under the provision, adjusted annually by the Consumer Price Index.

The availability of work for the member does not affect the determination of “totally disabled”.

[68] In accepting the plaintiff’s claim for Long Term Benefits the defendant made it clear that her claim was approved on the basis of her depression (See paragraph 14, herein).

[69] It is evident that, having concluded that the basis of the plaintiff’s claim was “depression”, the defendant did not feel it necessary to explore other aspects of the plaintiff’s limitations despite what was known as of August 16, 2000 (see paragraph 41 herein).

[70] It is not clear why that was so. Once the plaintiff was accepted for Long Term Benefits as “totally disabled” she could only be terminated if she ceased to have “a medically determinable physical or mental impairment due to injury or disease” preventing her from the regular duties of any occupation within the further definition of the section (see paragraph 67 herein).

[71] Dr. Semrau was approached for an opinion as if “mental impairment” were the only cause of disability when it was apparent that the plaintiff had a much more complex medical situation. In this regard I do not consider the defendant’s August 16, 2000 memorandum (paragraph 41) to acknowledge any specific fact, but it is certainly evidence that the defendant was aware of physical factors that might contribute to disability within the meaning of the policy, before it made the decision to terminate her benefits.

[72] The defendant appears to have proceeded on the premise that, having accepted the plaintiff’s claim on the basis of her mental condition, that limited the definition of disability to mental factors at the time she was assessed in November of 2000. As the defendant has submitted, however, the case turns on the plaintiff’s ability to “function in the work place” in November of 2000. An assessment at that time would have had to take account of “physical or mental” factors in accordance with the definition, if such were present. I see no basis for reading the agreement as if the contract provision addressing termination:

Benefit payments stop on the earlier of the date the benefit period ends or the date that

1. the member is no longer totally disabled.

means, “no longer totally disabled on the basis she was originally approved for benefits”.

[73] Dr. Semrau’s report carefully set out the history the plaintiff gave him. This included both physical and mental problems:

Ms. Sanders dates the onset of her symptoms to early 1999 as a result of extreme stress at work and both physical and mental problems she was experiencing. She states that she suffered from extreme anxiety, tension, daily panic attacks and had extreme sleep disturbance due to her business worries, unable to get to sleep until 3 or 4 a.m. She found it very difficult to talk to people effectively and indicates she had great difficulty with her memory and concentration, needing lists and notes to keep organized. She also was suffering from back and neck pain which aggravated her emotional difficulties. She claims that all of these difficulties compounded together and eventually she “fell apart” with the result that she applied for disability on May 12, 1999.

Her subsequent psychiatric assessment and progress was reviewed in detail with her, and compared to the psychiatric records available, with additional commentary supplied by her.

The medical records indicate that she had a long-standing low back pain problem, at least as early as 1995 or 1996. The clinical notes describe the occurrence of depression as early as January 1997 and after that there were episodes of treatment with Lorazepam and Amitriptyline. Ms. Sanders claims that her spells of depression before 1998 were relatively brief and self-limiting.

As of the summer of 1999 Ms. Sanders was apparently referred to Dr. Andrew Piver at the Nelson Mental Health Centre. In his consultation report July 29, 1999 he notes that she has been dealing with a number of stresses including that of her daughter leaving, her husband considering separation and the above-described business venture problems. Ms. Sanders explained that her daughter had been very angry that she was not getting enough attention from Ms. Sanders due to her absorption in her business situation. Her daughter therefore left to go live with the father and Ms. Sanders states that her common-law partner, who was very fond of the daughter, blamed Ms. Sanders for the daughter leaving and threatened to leave himself as well. Supposedly both parties also complained that Ms. Sanders became progressively more irritable as her new business venture gradually deteriorated.

Dr. Piver notes the emergence of symptoms including overwhelming anxiety, insomnia, increase in neck and back pain and intrusive obsessive rumination regarding her difficulties with feelings of anger, guilt and remorse. She was noted to have decreased motivation, decreased interest, decreased libido and feelings of hopelessness. She had been thinking about suicide, but felt that she would not do so because of her values. She was noted to complain of significant impairment in concentration and memory and Dr. Piver was concerned that this might have related to anticholinergic side effects from the Amitriptyline she had been taking. She was noted in the past to have taken other antidepressants including Luvox and Imipramine.

She was noted to have had a rather dysfunctional family background and to have significant difficulties with interpersonal relationships as an adult as a result of this. At that time Dr. Piver’s diagnosis was that of a major depressive episode with only partial response to treatment and a mixed personality disorder with compulsive traits, aggravated by neck and back pain and severe psychosocial stressors in relation to her family situation and disability.

Subsequent reports from Dr. Piver note that in the fall of 1999 she had been starting to do relatively well in terms of her emotional state, but had at some point “moved the wrong way and her back became more painful, since which time she has gone downhill”. Apparently as a result of this her mood again deteriorated, but Dr. Piver felt that the main cause of her disability was her back and neck problem rather than her depression.

It was noted she was experiencing ongoing stress due to litigation and her marital problems. She explained to me that she had launched a lawsuit against her former partners, the district manager and the Clarica company itself, all of whom she feels had a role in allegedly mistreating her. At that point her antidepressant had been changed to Trimipramine in order to try to reduce possible anticholinergic effects, but she was still “foggy” nevertheless. She was noted to be still experiencing back and neck pain, insomnia and some nightmares.

Sometime in the spring of 2000, Ms. Sanders had a falling out with her psychiatrist Dr. Piver, allegedly due to some kind of misunderstanding to which she took offence. Consequently she was transferred to the care of Dr. Michael Brownstein, with whom she continued subsequently. It was noted that she had been hospitalized for a couple of days in April 2000 due to an exacerbation of her depression. She was continuing to suffer from disturbed sleep, uncertainty about her employment and family conflicts. She was noted to continue to feel bitter and angry.

As of May 16, 2000, it appears that Dr. Brownstein felt that she was ready to return to work, as his letter indicates that he was encouraging her to apply for jobs and send out her resume. When asked to comment on this Ms. Sanders states that she herself had not felt ready to return to work and claims that Dr. Brownstein said to her “If you don’t try, it’ll never happen”. She claims that she looked for job ads in the paper, but still felt too emotionally unstable to be able to work.

In July 2000 Ms. Sanders returned to see Dr. Piver for completion of a disability assessment based on Dr. Brownstein’s wish to avoid mixing his therapeutic and evaluative roles. In Dr. Piver’s July 18, 2000 report he indicates a diagnosis of major depressive disorder with only partial response to Trimipramine, and a chronic pain syndrome. He noted compulsive personality traits, neck and back pain and severe psychosocial stressors including ongoing marital problems, financial insolvency and the possibility of physical disability.

It was noted that she had problems initiating sleep which was interrupted by nightmares and pain, alternating with times when she would oversleep. She was noted to be isolating herself socially, rarely leaving the house. She reported decreased motivation, decreased energy and being relatively inactive to avoid increasing her back pain. She felt that her concentration was diminished to the point where she retained very little when she reads. She was noted to feel angry, having difficulty making decisions and having decreased pleasure, libido and appetite.

She was noted to feel very stressed regarding the litigation with her former business partners and Clarica. As of my interview with her this was explored a good deal further. She stated that she had already been through one examination for discovery with a second one coming soon. She was feeling extremely fearful about the process of testifying in the examination for discovery, thinking that she would be unable to tolerate it and would fail in her litigation. It was quite plain that the ongoing litigation represented a highly stressful situation for her.

It was noted that her current medications were Trimipramine 250 mg at bedtime and Clonazepam 0.5 mg at bedtime. Although it was suggested in Dr. Piver’s letter that other medications should probably be tried instead, she indicated that these were still her current medications as of my interview with her.

Dr. Piver noted “… The patient starts to feel quite panicky when she thinks about going to another job and she has been trying to imagine it. She imagines herself not being able to learn and remember new skills and losing the job very quickly. She feels quite embarrassed about the whole idea of disability, litigation and the depression itself.”

Regarding the above descriptions of her symptoms and functioning in Dr. Piver’s letter of July 18, 2000, Ms. Sanders stated that her condition is essentially unchanged at the present time, except perhaps that her anxiety has increased significantly due to the looming prospect of having to testify as part of her litigation. Using a scale of 0 to 10, where 0 is the worst she has ever felt, and 10 would be completely normal functioning, she states that she currently feels on average about 5/10, but has about 10 days out of every two or three weeks when she feels close to 0. She claimed that during my interview with her she was at the 5/10 level.

Ms. Sanders was asked to describe her current level of activity in various areas, contrasting this with 2 ½ years ago prior to her current business venture, when her level of involvement in various activities would be regarded as 100%. On this basis she stated that her involvement in cooking and kitchen activities would range from 0 to 50%, depending on whether she was having a good or bad day. She stated her involvement in housecleaning would vary from 0 to 25%. She states she still does as much laundry as before but never did significant household maintenance/repair or yard and garden work. She states that her relationship with her children and her spouse has declined markedly because of her negative moods. She also spends much less time involved in outings with friends and spends only about 25% as much time involved with exercise and sports. She states involvement in errands and shopping is about 50% of what it had been.

She says she only reads about 10% of what she used to due to impairment concentration and restlessness and has dropped her hobbies such as playing the piano. On the other hand the amount of TV has increased substantially due to the extra time on her hands. She also finds that a lot of her spare time is spent with oversleeping and just sitting, staring and worrying about her difficulties in a circular and unproductive fashion.

(emphasis added)

[74] Dr. Semrau described the plaintiff’s appearance in his presence:

During my interview with Ms. Sanders, she appeared mildly depressed, but what was most evident was a pervasive anger and bitterness, feeling that she was victimized and mistreated in most areas of her life, including by her former business partners, Clarica and her family. She stated that on many days her emotional state is much worse and I was really seeing her on one of her better days.

During the course of the interview, no significant impairment in concentration, memory or ability to think or speak clearly were detected. Her answers were rapidly and appropriately responsive, even when the questions were relatively complicated. She seemed to have no significant difficulty with memory of past or recent events.

Formal memory testing was conducted in a couple of forms. Asked to remember four unrelated words, she was able to register them immediately and was able to remember three of them without any difficulty as much as ten minutes later. She was able to remember seven digits in forward order without difficulty. She was able to repeat digits in reverse order up to six in a row with only one error. She was asked to carry out serial 7’s subtraction and did so rapidly and without any errors. Overall, there was no evidence of any significant cognitive or memory dysfunction, although again she claimed that this was one of her better days.

[75] He stated his opinion in these terms:

On objective examination, very little could be found to support Ms. Sanders’ claim that she experiences confused thinking and difficulties with her concentration and memory. She did claim that this was one of her better days and that she has far more difficulty on other days, but I have no way of verifying this from the information available to me. Thus in providing the above assessment and diagnosis, I am accepting the history provided by her and as corroborated in the medical records reviewed, but I am actually unable to draw those same conclusions based on my own direct observations of Ms. Sanders.

[76] On this point I repeat that at trial the court had the benefit of seeing and hearing the plaintiff and the collateral witnesses under circumstances in which their credibility was tested by cross-examination. Over-all their evidence was credible and tended to reinforce the outline given to Dr. Semrau by the plaintiff, but which was not apparent in his direct observations. One must be properly sceptical of a person whose “good days” tend to coincide with independent medical attendances and examinations for discovery. Dr. Semrau dealt with this as follows:

Regarding the possibility of symptom magnification, I was unable to observe any particular tendency in that regard on Ms. Sanders’ part. However as noted above, I did not observe anything like the degree of impairment of concentration or memory which she claimed to experience and am unable to objectively say whether she performs worse on her “bad days’ or not.

[77] Having had the benefit of the evidence I have outlined, and having considered the degree to which it might have been influenced by considerations of advantage or sympathy, I am left with fewer reservations than Dr. Semrau, and I accept that the symptoms and behaviour described by the witnesses are substantially accurate.

[78] Despite his caution in this regard, Dr. Semrau’s diagnosis, using DSM-4. was as follows:

Axis 1 Major Depressive Episode in partial remission.

Axis II Personality Disorder with significant compulsive personality traits and relatively mild borderline personality traits.

Axis III Back and neck pain.

Axis IV Severe psychosocial stressors including relationships with spouse and children, financial stresses, unemployment and particularly severe stress due to ongoing litigation

Axis V - Global Assessment of Functioning = 60 (moderate symptoms and moderate difficulty in social and occupational functioning).

[79] Narratively, he said the following:

Regarding Ms. Sanders’ current ability to work, the answer depends somewhat on what occupation one is considering. In my opinion she is currently disabled in terms of being able to perform the essential duties of work as an insurance agent at the present time, in significant part because the uncertainty relating to this litigation would not allow her to focus sufficient energy and concentration on such a relatively demanding occupation. Thus the cause of disability for that occupation can be viewed as some combination of a medical condition and on the other hand also a circumstantial factor relating to the ongoing litigation.

The answer is somewhat different if one considers other occupations, including Ms. Sanders’ previous employment in a pizza business or operating a convenience store/restaurant. In occupations such as this, demands on cognitive abilities are somewhat less as one does not need to make skilful sales presentations, carry out mathematical analyses or any of the other more demanding duties associated with being an insurance agent.

In my opinion, despite her current symptoms, she would be capable of functioning in the former occupational roles of operating a pizza business or a restaurant/convenience store. In fact I concur with Dr. Brownstein that it would probably be quite therapeutic for her to resume employment of that kind, as she would have some productive and positive focus in her life, rather than being left with excessive time to ruminate unproductively regarding her litigation.

Using your definition of total disability as meaning inability to perform the essential duties of any occupation for which she has the minimum qualifications, I would have to say that she is not currently totally disabled by that definition, particularly keeping in mind the added criterion that availability of work in that particular area is not a relevant factor.

[80] It can be seen that the focus of Dr. Semrau’s report - properly, let me add - is the plaintiff’s psychiatric condition, which is within his area of expertise. He does not and cannot helpfully comment on her orthopaedic status:

It should be noted that, given my specialization in psychiatry, I am not expressing any opinion as to occupational limitations which might be imposed as a result of physical problems such as back pain and the associated fatigue and energy difficulties which are often inherent in such painful conditions.

[81] As far as Dr. Semrau’s opinion goes, he essentially says that the plaintiff is psychiatrically disabled for a range of cognitively demanding occupations, such as the one she occupied when she went on disability, though he cannot say the same for retail or restaurant work. This left completely open, however, the question of whether and to what extent the plaintiff’s complaints of neck and back pain had any bearing on the issue of "total" disability".

[82] The records, of course, are replete with references to both types of complaint. Dr. Murray’s submission to the defendant in support of the plaintiff’s application ranked the orthopaedic complaints as secondary to the depression. Dr. Piver’s correspondence with the defendant in July of 2000 rated her disabled for work on the basis of her depression, although he appears to have been specifically considering her occupation in the insurance field and her prospects for retraining to do something comparable (excerpt paragraph 9 herein).

[83] Dr. Brownstein’s notes, which trace the plaintiff’s report of her own condition during the period when she was on disability, signal that her physical difficulties sometimes took the foreground. This is despite the fact that Dr. Brownstein’s role was therapeutic and addressed only her depression and psychiatric problems. The defendant’s August 16, 2000 memorandum (excerpt paragraph 41 herein) shows that this had come to their attention as, at times, the “major [diagnosis] preventing [return to work]”. The defendant was not obliged to accept this uncritically, but in the face of such information it elected, in seeking Dr. Semrau’s opinion, to explore only the “mental impairment” component of the plaintiff’s matrix of “physical or mental impairments” which might have had a bearing on the question of “total disability” within the definition in the insuring contract.

[84] The plaintiff’s evidence, and that of the witnesses who knew her, suggested that the plaintiff had rather serious physical limitations at the time her long term disability benefits were terminated. These complaints had been followed by the plaintiff’s general practitioner and had been the subject of referrals to orthopaedic specialists, and subject of other forms of therapy. These are outlined in the appendix to

Citation:	*Sanders v. Clarica Life Insurance Company,*
	2005 BCSC 88