Payman Zand v. Zurich Insurance Company, 1997 ONICDRG 110

ONTARIO INSURANCE COMMISSION

Neutral Citation: 1997 ONICDRG 110 OIC A95-000283

BETWEEN:

PAYMAN ZAND Applicant

and

ZURICH INSURANCE COMPANY Insurer

DECISION

Issues:

The Applicant, Payman Zand, was injured in a motor vehicle accident on March 10, 1991. He applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under Ontario Regulation 672.¹ Zurich terminated weekly income benefits on September 24, 1994. The parties were unable to resolve their disputes through mediation and Mr. Zand applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Zand entitled to weekly income benefits from September 25, 1994 onwards, pursuant to section 12(5)(b) of the Schedule?

2. What is the correct quantum of benefits to which Mr. Zand is entitled, pursuant to section 12(4) of the Schedule?

Mr. Zand also claims interest on any amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Zand is entitled to weekly income benefits from September 25, 1994 onwards, with interest, pursuant to section 12(5)(b) of the Schedule.

2. Mr. Zand is entitled to be paid outstanding benefits at a rate of $362.67 per week, pursuant to section 12(4) of the Schedule.

3. Mr. Zand is entitled to his expenses of the arbitration.

Hearing:

The hearing was held in Ottawa, Ontario, on June 4 and 5, 1996.

Present at the Hearing:

Applicant: Payman Zand

Mr. Zand's Representative: Tom Ozere Barrister and Solicitor

Zurich's Representative: Ken Wright Barrister and Solicitor

Witnesses: Payman Zand Dr. Martin Gillen Dr. Lynne MacGregor Mr. Ross Skirda

Exhibits: The parties filed 23 exhibits.

Evidence and Findings:

Background

Mr. Zand was injured in a motor vehicle accident on March 10, 1991. He was 30 years old at the time, and a cab driver for Blue Line Taxi in Ottawa. He was driving his taxi through an intersection when it was hit by car that had run a red light. His taxi was spun around by the impact, and was "written off." He hit the radio/instrument panel in front of the driver's seat. Mr. Zand testified that the radio had, in fact, been dislodged and hit him in the head. Although he was able to drive home, he experienced pain in his neck, right arm and left leg. He was seen at the Ottawa General Hospital that day, was prescribed painkillers, and was referred to his family doctor, Dr. Peter Pang. He saw Dr. Pang the next day, who prescribed pain-killers and referred him to physiotherapy. Mr. Zand said he developed low back pain about two days after the accident.

His neck and arm pain eventually resolved, but his low back and leg pain persisted. Mr. Zand was eventually referred by the Insurer to Dr. Lynne MacGregor, a physical medicine and rehabilitation specialist, who diagnosed a disc herniation in the lower spine. Dr. MacGregor recommended surgery and, although initially reluctant, Mr. Zand eventually had an operation. He reported some improvement in his back pain after the surgery, but his symptoms gradually returned. He continued to experience persistent low back pain radiating into both his left and right leg. These symptoms have remained essentially unchanged, with some periods of improvement. In March 1995, Dr. Pang referred Mr. Zand to Dr. Martin Gillen, a physiatrist, for further evaluation. Dr. Gillen diagnosed "significant chronic pain syndrome secondary to mechanical back pain with an associated deconditioning." Mr. Zand had had no significant health problems prior to the accident.

At the time of the accident, Mr. Zand was employed as a taxi driver. He had also worked as a courier/driver and as an auto mechanic. Mr. Zand lived in Iran prior to coming to Canada. There, he worked as a site manager for a construction company, and as a bookkeeper for an import/export company. The site manager position involved hiring workers, maintaining equipment and ensuring work timelines were met. He is also a hydraulic technician and completed two years of a five year college programme in mechanical engineering in England. Following the accident, Mr. Zand did a small amount of electrical repair work for friends, and some freelance writing for a community newspaper. He has not driven a taxicab since the accident.

Mr. Zand's position in this arbitration is that, as a result of the motor vehicle accident, he has been rendered continuously disabled from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, pursuant to section 12(5)(b) of the Schedule. He also maintains that he is entitled to weekly income benefits at the rate of $600 per week, instead of the $362.67 per week the Insurer paid him. The Insurer argues that it has correctly paid Mr. Zand, and that, in any event, he is no longer disabled from returning to work within the meaning of section 12(5)(b) of the Schedule.

Disability and Rehabilitation Efforts

Mr. Zand underwent physiotherapy treatment for approximately a year following the accident. He then had surgery for his disc herniation in August 1992. He had acupuncture treatment in the fall of 1992, and chiropractic treatment in 1993. The chiropractor referred him to a physiatrist, Dr. A. Kachooie, who, in turn, ordered various medical tests and physiotherapy. Dr. Kachooie also had Mr. Zand participate in a rehabilitation programme at the YMCA in the summer and fall of 1993.

The kinesiologist at the YMCA, Mr. Chris Serran, reported that Mr. Zand participated well in the programme and appeared highly motivated. Mr. Zand improved in muscular endurance, strength and flexibility, and in his pain perception. However, he remained in poor overall physical condition. Mr. Serran recommended continuation of the exercise programme, in conjunction with a weight management programme. Mr. Serran also felt that Mr. Zand was not capable of returning to his pre-accident employment, but he was referring to Mr. Zand's "usual occupation" of mechanic, not his pre-accident job of taxi driver.

In February 1994, Mr. Zand underwent a functional capacity evaluation at the Access Therapy Centre. The occupational therapist, Ms. Astrid Norve, reported that Mr. Zand was co-operative and "demonstrated consistent effort on a maximum voluntary effort test." Ms. Norve stated that due to Mr. Zand "being deconditioned secondary to his motor vehicle accident, he is not able to perform the job requirements of a taxi driver on a full-time basis." Ms. Norve recommended a work-hardening programme. Dr. MacGregor testified that the aim of such a programme was to increase Mr. Zand's general fitness and to return him to his previous job of taxi driver.

Mr. Zand participated in the work-hardening programme at Access Therapy from March to May 1994. He complained that the programme caused him a great deal of pain. He specifically complained about having to jack up a car to simulate changing a tire in his job as a taxi driver. Mr. Zand relayed these concerns to Dr. Kachooie, who advised him to carry on with the programme to the extent that it focussed on general re-conditioning. Dr. Kachooie continued to feel that Mr. Zand was not capable of returning to driving a taxi, and that he should be pursuing another occupation. Mr. Zand testified that Dr. Kachooie had told him to stop the programme. Mr. Zand also said that he found the Access Therapy personnel rude and overly demanding, and was so frustrated and upset with them after being asked to jack up the car, that he left the programme in May 1994.

In her concluding report, Ms. Astrid Norve, the occupational therapist overseeing the work-hardening programme, found that Mr. Zand remained focussed on his pain and would have to develop the appropriate coping skills to resume productive employment. She felt that due to Mr. Zand's continued deconditioned state, he could not return to his previous job as a taxi driver. However, she felt that with further physical conditioning (including a structured, supervised exercise programme and nutrition counselling) and professional assistance for his psycho-social problems, Mr. Zand would be able to return to taxi-driving on a part-time basis.

Mr. Ross Skirda, a vocational rehabilitation consultant, performed a Transferability of Skills Analysis of Mr. Zand in June 1994, based on his work history and the results of the functional capacities evaluation performed at Access Therapy in February 1994. A computer-generated list of jobs was produced, which Mr. Skirda described as a first step in a vocational rehabilitation programme. Mr. Skirda stated that a worksite job analysis might be necessary (to accommodate any required job modifications), that Mr. Zand should continue with a physical reconditioning programme, and that the list of jobs might not be suited to a person suffering from specific medical conditions (such as chronic pain syndrome).

In March 1994, Dr. MacGregor reported that, although Mr. Zand appeared to have improved following his back surgery, he still required a work-hardening programme. In June 1994, she reported that, with some reconditioning, Mr. Zand could return either to his previous job of taxi driving or to the positions listed in Mr. Skirda's Transferability of Skills Analysis, starting on a part-time basis and gradually increasing to full-time. Dr. MacGregor was disappointed that Mr. Zand had left the work-hardening programme, and felt that Dr. Kachooie had misunderstood the nature of the treatment. Nevertheless, she stated that "given [Mr. Zand's] preoccupation with pain and his poor coping skills for pain management and his focus on looking for a cure, he may benefit from some pain management sessions...." She acknowledged at the hearing that the Insurer's rehabilitation efforts had not included pain management.

The Insurer scheduled an IME with Dr. Agapitos for September 9, 1994. Mr. Zand indicated that he would not attend this appointment, as he was satisfied with Dr. Kachooie's assessment of his condition, and was frustrated with the course the medical and rehabilitation treatment had taken. The Insurer terminated benefits and rehabilitation assistance on September 24, 1994. Mr. Zand subsequently agreed to see Dr. Reda El-Sawy, a physiatrist, on November 23, 1994. Dr. El-Sawy reiterated Dr. MacGregor's view that the work-hardening programme should have been continued. Dr. El-Sawy also felt that Mr. Zand should be tested psychologically in relation to his motivation to carry on with vocational rehabilitation.

Dr. Gillen, the physiatrist to whom Mr. Zand was referred by his family physician, saw Mr. Zand in March 1995 and diagnosed chronic pain syndrome. He testified that, at that time, Mr. Zand was incapable of returning to any occupation, not just taxi driving. Dr. Gillen stated that Mr. Zand required a pain management programme, in addition to a reconditioning programme, in order to return to the workforce. In March 1996, Dr. Gillen reported that Mr. Zand still required pain management assistance, and that he was not capable of returning to work either as a taxi driver or as a mechanic. On cross-examination, Dr. Gillen stated that it would be reasonable for Mr. Zand to consider the positions of construction site manager and bookkeeper in relation to a potential return to work, and that it might have been helpful to have explored these positions in the context of the work-hardening programme. Nevertheless, Dr. Gillen was not optimistic that Mr. Zand would be able to return to full-time employment, and stated that Mr. Zand would benefit from a vocational aptitude evaluation and a vocational rehabilitation programme.

In the summer of 1995, the Insurer agreed to provide additional vocational rehabilitation assistance to Mr. Zand through Crawford & Company Healthcare Management. They were attempting to assist Mr. Zand with a job search and work-trials, and perhaps a work-hardening programme, but the process had not been completed by the time of the hearing.

Mr. Zand testified that he has attempted to find work since the accident, but has been unsuccessful because of a lack of training and because potential employers are not willing to hire someone with a back injury.

Quantum

Mr. Zand testified that he worked for Blue Line Taxi for 8 months prior to the accident. He said that he did this job in order to earn money to get married. He said that a typical work day began at 4:00 a.m., and that on weekends and holidays, he would work 18 hours a day. He generally worked seven days a week, but rested some days. He rented the car from a friend at the rate of $600 every two weeks. According to copies of a log book he kept for the months of January to March 1991 (approximately 10 weeks), Mr. Zand earned gross income of $17,371. He earned a net amount during this time of $12, 427.90, after deductions for gas, union dues, insurance and rental fees. Mr. Zand reported substantially lower income on his 1991 income tax return, gross income of $11,285 and net income of $4,465. He testified that he did not disclose all of his earnings to Revenue Canada. He filed an amended income tax return for 1991 in 1994, indicating that his gross income was $17,371 and his net income was $11, 663.40. He filed this return because the Insurer said they had calculated his weekly income benefits on the basis of his original 1991 tax return. On cross-examination, Mr. Zand stated that he earned $8,000-$9,000 net income per month prior to the accident. However, he could not explain these figures in relation to the lower gross amounts in his log book, even though he claimed that the cold winter months immediately preceding the accident were good for earning money as a cab driver. He also stated that he could not find his log book for the months prior to January 1991.

Analysis and Conclusion:

Disability

Based on all of the evidence, I find that Mr. Zand has established that the injuries received in the motor vehicle accident rendered him continuously disabled from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, pursuant to section 12(5)(b) of the Schedule.

Mr. Zand was involved in a relatively serious collision. He suffered various injuries to his neck, right arm, low back and left leg. Although his neck and arm pain resolved, his back and leg pain persisted, until he eventually underwent back surgery. He continues to suffer from pain in his low back, and now experiences pain in both of his legs. In 1995, Dr. Gillen diagnosed Mr. Zand as suffering from significant chronic pain syndrome. The Insurer has not specifically challenged this diagnosis.

However, the Insurer has generally questioned Mr. Zand's credibility. It points to the uncertainty concerning Mr. Zand's pre-accident income, and his denial of Dr. Pang's notes concerning a significant lawsuit against the Insurer. It also maintains that Mr. Zand's treatment and progress would have been assisted if he had mentioned his previous work as a construction site manager and bookkeeper in Iran, when asked about his employment history. It states that Mr. Zand has not properly sought alternative employment, and that, partly due to Dr. Kachooie's involvement, Mr. Zand failed to pursue the Insurer's legitimate plan of rehabilitation.

In my view, these concerns do not affect Mr. Zand's credibility, as it relates to the symptoms he experienced following the accident, or his ability to return to the workforce. The evidence establishes that Mr. Zand participated well in the YMCA programme and the Access Therapy functional capacity evaluation. The work-hardening personnel did not question Mr. Zand's honesty; they suggested he needed assistance with coping skills and general psycho-social problems. Neither Dr. MacGregor, nor Dr. El-Sawy questioned Mr. Zand's credibility; like Dr. Gillen, Dr. MacGregor felt he needed a pain management programme, and Dr. El-Sawy said he should be tested psychologically in relation to his motivation to carry on with vocational rehabilitation.

Even if Mr. Zand was not forthright about his pre-accident earnings, or his statements to Dr. Pang concerning legal actions against the Insurer, this does not, in my view, reflect on the severity of his disability or the legitimacy of his need for pain management and psycho-social counselling. I further do not find that Mr. Zand attempted to impede his rehabilitation by concealing the work he had done as a construction site manager and bookkeeper; these were not his primary pre-accident occupations, and he believed that they were not relevant to his specific rehabilitation programme because they took place before he emigrated to Canada. In any event, the Insurer focussed primarily on attempting to return Mr. Zand to his pre-accident job of taxi-driving. As will be discussed in greater detail below, the rehabilitation conducted by the Insurer did not fully address Mr. Zand's medical needs, and would not have rendered him capable of returning to reasonably suitable employment, even if he had disclosed all of the jobs he had performed prior to coming to Canada.

Similarly, in the absence of clearer medical evidence, I do not find it significant that Mr. Zand may have ended the work-hardening programme early, or that he may not have attempted to find a new job as aggressively as he could have. In any event, I find that Mr. Zand reasonably believed that his physician did not support the specific rehabilitation programme initiated by the Insurer, that he made reasonable, though limited, efforts to find a new job, and that he still required medical assistance to participate productively in rehabilitation and to return to the workforce. I, therefore, reject the Insurer's suggestion that Mr. Zand is not credible in relation to his medical condition and ability to return to employment.

None of the rehabilitation personnel assisting Mr. Zand concluded that he was capable of returning to his pre-accident job or a suitable alternative on a sustained, full-time basis. Mr. Serran at the YMCA found that Mr. Zand could not return to work as a mechanic. After the functional capacity evaluation in early 1994, Ms. Norve at Access Therapy stated that Mr. Zand could not perform the job requirements of a taxi driver on a full-time basis. Mr. Zand left the work-hardening programme early, but Ms. Norve still felt he needed assistance to learn to cope with his pain. Ms. Norve also felt that, even with additional psycho-social assistance and physical conditioning, Mr. Zand could only return to part-time employment as a taxi driver. Mr. Skirda at Access Therapy generated a list of potential occupations for Mr. Zand, but acknowledged that additional vocational assistance would likely be required to re-integrate him into the workforce, and that the list was not tailored to accommodate Mr. Zand's specific medical condition of chronic pain syndrome.

Similarly, none of the physicians in this case concluded that Mr. Zand was capable of returning to his pre-accident job or a suitable alternative on a full-time basis. Dr. MacGregor did not dispute Dr. Gillen's diagnosis of chronic pain syndrome. Although she felt Mr. Zand had left the work-hardening programme prematurely (due, in part, to Dr. Kachooie's misunderstanding of the nature of the programme), she conceded that the Insurer's rehabilitation plan had not addressed Mr. Zand's pre-occupation with pain and his related search for a "cure" to his problems. She felt that Mr. Zand would likely only be able to return to part-time employment to start (either as a taxi driver or in one of the positions on Mr. Skirda's list) and, in any event, required additional conditioning, pain management and psycho-social counselling. Dr. MacGregor's evidence establishes that, as of the date of the hearing, she still felt that Mr. Zand had not received the assistance he needed to return to sustained, full-time employment.

Mr. Zand saw Dr. El-Sawy after the Insurer terminated benefits in September 1994. Dr. El-Sawy did not comment on Mr. Zand's ability to return to work. He agreed with Dr. MacGregor that Mr. Zand should have continued with the earlier rehabilitation plan; however, consistent with Dr. MacGregor and Dr. Gillen, he stated that Mr. Zand should be tested psychologically before attempting further rehabilitation. In my view, Dr. El-Sawy's evidence also establishes that Mr. Zand required additional attention before being capable of resuming productive, full-time employment.

Dr. Gillen conducted the most recent assessments of Mr. Zand. Although he felt that Mr. Zand's rehabilitation should address all of his previous work experiences, he still felt that Mr. Zand was not capable of returning to full-time employment on a sustained basis. Like Dr. MacGregor and Dr. El-Sawy, he felt that Mr. Zand required pain management treatment, psychological assistance and additional physical and vocational rehabilitation to be capable of re-entering the workforce at a level comparable to his pre-accident employment. The Insurer eventually agreed to provide this additional assistance, but the process had not been completed by the time of the hearing.

I, therefore, find that the motor vehicle accident rendered Mr. Zand continuously disabled from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, pursuant to section 12(5)(b) of the Schedule.

Quantum

Regarding the rate at which weekly income benefits should be paid, the Insurer paid Mr. Zand based on the amounts reported in his 1991 income tax return. These amounts were substantially lower than those recorded in Mr. Zand's log book, and reported in his amended income tax return in 1994. These latter amounts, in turn, were significantly lower than those Mr. Zand testified were his earnings in the months immediately preceding the accident. Mr. Zand's 1990 income tax return suggests earnings comparable to those reported to Revenue Canada in 1991. Mr. Zand was apparently not able to locate the log book he kept for the months prior to January 1991.

Mr. Zand has presented three conflicting scenarios of his earnings in the 10 weeks prior to the accident. The supporting documentary evidence is also very limited. In these circumstances, I am not prepared to interfere with the Insurer's original calculation of benefits. This is the rate at which Mr. Zand should be paid for the outstanding weekly income benefits.

Expenses:

Although Mr. Zand did not substantiate his claim to a higher rate of benefits, he did establish that his benefits should be reinstated. I am satisfied that this arbitration was brought in good faith and raised legitimate issues for determination. I, therefore, exercise my discretion to award Mr. Zand his expenses of the arbitration. Should the parties be unable to agree on the amount owing, they may apply to the Registrar for an assessment.

Order:

1. Mr. Zand is entitled to weekly income benefits from September 25, 1994 onwards, with interest, pursuant to section 12(5)(b) of the Schedule.

2. Mr. Zand is entitled to be paid the outstanding benefits at a rate of $362.67 per week, pursuant to section 12(4) of the Schedule.

3. Mr. Zand is entitled to his expenses of the arbitration.

June 19, 1997

Eban Bayefsky Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule — Accidents On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.