Neutral Citation: 1997 ONICDRG 119

OIC A95-000069

ONTARIO INSURANCE COMMISSION

BETWEEN:

EDUARDO MACHIN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Eduardo Machin, was injured in a motor vehicle accident on November 3, 1993. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by Allstate on February 20, 1995. The parties were unable to resolve their disputes through mediation and Mr. Machin applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits under section 12 of the Schedule from February 21, 1995 and ongoing?

2. Is the Applicant entitled to medical and rehabilitation benefits, under section 6 of the Schedule, for a weight loss program, nasal CPAP therapy, and rehabilitation services provided by Evergreen Rehabilitation Services Inc.?

3. Is the Insurer entitled to repayment of benefits paid since October 22, 1994, with interest under section 27 of the Schedule, based on the surveillance of the Applicant on that date?

4. Is the Applicant entitled to a special award under section 282(10) of the Act?

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

Result:

1. The Applicant is not entitled to further weekly income benefits.

2. The Applicant is not entitled to further rehabilitation benefits

3. The Insurer is not entitled to repayment of benefits paid.

4. The Applicant is not entitled to a special award. The Applicant is entitled to his arbitration expenses.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on January 27, 29 and 30, 1997, before me, Nancy Makepeace, Arbitrator.

Present at the Hearing:

Applicant:

Eduardo Machin

Mr. Machin's

A. S. Pace

Representative:

Barrister and Solicitor

Marlett Dobson

Articling student

Gabriel Pignalosa

Accident Benefits Specialists

Allstate's

Mark L.J. Edwards

Representative:

Barrister and Solicitor

Allstate's

Bill Gold

Officer:

Witnesses:

Eduardo Machin, the Applicant

Joel Kumove, Rehabilitation Consultant, Evergreen Rehabilitation Services Inc.

Jane Stephens, Occupational Therapist, Toronto Orthopaedic and Arthritic Hospital

Mr. Machin was assisted by Liliana Chocarro, an interpreter in the Spanish and English languages, on January 27 and 29.

Exhibits:

Exhibit 1

Applicant's Brief

Exhibit 2

Applicant's Supplementary Brief

Exhibit 3

Vocational Rehabilitation Assessment, October 2, 1996

Exhibit 4

Dr. W.J. Reynolds, January 9, 1997

Exhibit 5

Dr. M.W. Roscoe, January 10, 1997

Exhibit 6

Functional Abilities Evaluation, November 1994, prepared by Marcella Paoletti, Physiotherapist, Jane Stephens, Occupational Therapist, and Alice Kleban, Occupational Therapy Assistant

Exhibit 7

Surveillance Videotape

Exhibit 8

Form 4 report, Dr. Rathe, May 17, 1994

Preliminary matters:

In addition to the issues identified above, the Insurer alleges that the Applicant's pre-accident income did not justify benefits at the rate of $300 a week, and requests repayment of benefits overpaid on this basis. On behalf of the Applicant, Mr. Pace agreed that the benefit rate and the related repayment request could be determined in this proceeding, even though these issues were not mediated and the Applicant had not disputed the benefit rate. I granted the Applicant's request for an adjournment of the hearing with respect to the benefit rate because my review of the file persuaded me that the parties were not prepared to proceed on this issue. I arranged for another Arbitrator to resume the pre-hearing with respect to the benefit rate issue, and for the hearing on that issue to be rescheduled; the hearing on the benefit rate issue has now been scheduled for January 1998.

The hearing with respect to the Applicant's entitlement to weekly income benefits and medical and rehabilitation benefits proceeded. At the outset of the hearing, I indicated that I would not issue my decision on these issues until the completion of the hearing on the benefit rate, in accordance with the Commission's general practice of not splitting proceedings. After the parties completed their submissions, Mr. Pace indicated that he would apply for interim rehabilitation benefits on behalf of the Applicant. I received his motion dated February 10, 1997; I have received nothing from the Insurer on this point.

On reconsidering the matter, given the substantial delay in scheduling the hearing on the benefit rate issue, the likely further delay in issuing that decision, the time that has elapsed since the Applicant's request for interim benefits, and the fact that the parties completed their evidence and submissions on the weekly benefit and medical and rehabilitation benefit issues some months ago, I decided to issue my final decision on the issues raised in this hearing.

Evidence and Findings:

The Applicant, Eduardo Machin, had been working as a courier driver for about 9 months when his mini-van was rear-ended while stopped at an intersection on November 3, 1993. His accident-related injuries to his neck and shoulders substantially resolved within a few months of the accident, but he claims that he cannot return to his job as a courier because of ongoing low back pain radiating to his left leg, relating to a disc herniation at L4-5. Alternatively, the Applicant claims to be disabled by fibromyalgia or soft tissue injuries to his low back. In particular, the Applicant claims that his ongoing symptoms prevent him from repeatedly getting into and out of a truck or minivan, sitting for more than 15 minutes at a time while driving, lifting and carrying heavy parcels, and maintaining a productive pace throughout the day. A Worksite Assessment prepared by Total Rehabilitation Management Inc., the rehabilitation company retained by the Insurer, found that the job involved sitting about 70% of the day, walking about 25% of the day, and standing for the remaining 5%. Physical demands included continuous sitting and driving, and lifting and carrying. The Applicant averaged 15-20 deliveries in an 8-hour day, and could be required to lift up to 40 pounds repetitively.²

The Applicant also claims weekly benefits after 156 weeks on the basis that he is unable to do any other job for which he is reasonably suited by education, training or experience. He graduated from Grade 12 in Cuba and worked as a stonecutter and sapper before emigrating to Canada in 1990. The Applicant testified that he has worked in Canada as an industrial machine operator in the plastics industry, a shipper-receiver, a truck driver and a waiter. While working as a machine operator for a window manufacturer in 1991, the Applicant injured his hand while operating an electric saw. He returned to work after surgery and a lay-off of several months. The Applicant's work-related injury is not an issue in this proceeding.

The Insurer disputes the Applicant's claim of disability, and submits that any residual symptoms he has are related to pre-existing obesity, severe obstructive sleep apnea³ and degenerative back problems.

The Applicant did not go to the hospital after the accident of November 3, 1993, but saw his family doctor, Dr. C.N. Rathe, the next day, complaining of neck and back pain and a headache. Dr. Rathe noted "++ muscle spasm" in the Applicant's neck and back, but the Applicant's reflexes, sensorimotor function and straight leg raising were all negative. These results suggest that the Applicant sustained soft tissue injuries without neurological involvement. Cervical and lumbar x-rays taken at that time were negative,⁴ as were repeat x-rays done a year later,⁵ but a CT scan in June 1994 showed moderate disc bulging at L3-4 and L5-S1, and central disc herniation at L4-5. A follow-up CT scan in December 1994 showed that the L3-4 disc bulge had resolved, and the L5-S1 disc bulge remained unchanged, but the L4-5 disc herniation was slightly worse, with increased protrusion to the left.⁶

The CT scan results are the only objective evidence that the Applicant injured his low back. They do not indicate whether the L4-5 herniation is symptomatic or disabling, or whether it resulted from the accident or from degenerative processes pre-dating the accident. Accordingly, positive radiological findings are not sufficient to prove the Applicant’s case, but must be considered along with all the other evidence before me.

The Applicant's pre-accident medical condition:

The Insurer focused on the Applicant's weight problem as the cause of his residual back symptoms. The Applicant estimated his weight at the time of the hearing as 280 pounds at a height of 5'8". Although there was conflicting evidence about the Applicant's past weight, it is clear that the Applicant had a weight problem before the accident⁷ and has continued to gain weight since the accident.⁸

I am satisfied that the Applicant's accident-related musculoskeletal pain and the loss of his job led to further deconditioning and weight gain. However, I accept the observations of Dr. Mayer (an orthopaedic surgeon), Dr. Ameis (a physiatrist) and Jane Stephens (an occupational therapist) that the Applicant's obesity limited his mobility completely independently of his back problems.⁹I find that the Applicant's ongoing weight gain after the accident was mainly a continuation of his pre-accident pattern. I am not persuaded that the accident contributed in a significant or material way to the Applicant's post-accident obesity.

Shortly after the accident, the Applicant was assessed by Dr. J.J. Vlasschaert, an internist and respirologist, about his snoring (which his wife complained prevented her from sleeping), sleep apnea (noticed by his wife), excessive daytime sleepiness and chronic fatigue. Dr. Vlasschaert diagnosed obstructive sleep apnea and recommended that the Applicant undergo a sleep study.¹⁰The sleep study conducted at the Toronto Hospital Sleep Disorders Clinic in June 1994 confirmed "severe sleep apnea, likely obstructive in nature, accompanied by oxygen desaturation, bradytachycardia,¹¹ and frequent movement arousals."¹²

In early 1993, the Applicant was involved in a motor vehicle accident which, by his own account, occurred because he fell asleep at the wheel. He told the assessors at the Sleep Clinic that he often feels very sleepy at the wheel and therefore avoids driving.¹³ In his April 1995 report, Dr. Zamel, who supervised the Applicant's sleep study, concluded:

I informed Mr. Machin that he should not drive, he hasn't been driving in the past few months but we will need to report this problem to the driving authorities with a recommendation that he be allowed to drive if he continues nasal CPAP therapy.¹⁴

Dr. Rathe reported the matter to the authorities, and the Applicant's licence was suspended for medical reasons in June 1995.¹⁵ It has not been reinstated.

The Applicant conceded in his testimony that his sleep problems pre-dated the November 3, 1993 accident, though he claimed that his daytime fatigue is worse now. I find that the Applicant had developed a severe sleep disorder before the accident.¹⁶

Several of the doctors who assessed the Applicant reported that the Applicant had sleep problems secondary to musculoskeletal pain. However, they did not know that the Applicant's severe sleep apnea pre-dated the accident. The doctors who assessed the Applicant at the Sleep Clinic knew about the November 1993 accident, but did not suggest that it had anything to do with the Applicant's sleep apnea, which they attributed mainly to his obesity. I am not persuaded that the motor vehicle accident contributed in any significant or material way to any ongoing sleep or fatigue problems experienced by the Applicant.

On cross-examination, the Applicant agreed with Mr. Edwards that he would not be able to work as a courier as long as his licence was suspended, even if the motor vehicle accident had never happened. The legal bar to the Applicant's working as a courier does not prevent him from receiving weekly benefits if I find that he remains substantially disabled from working as a courier because of accident-related back pain. However, the licence suspension provides a possible alternative explanation for the Applicant's failure to try to return to his pre-accident job.

Aside from his sleep problems, the Applicant also complained about back pain only three weeks before the accident. The clinical notes of Dr. S. Kingstone, a family doctor, indicate that the Applicant complained about back pain, for which the doctor prescribed Naprosyn, on October 13, 1993. The Applicant admitted in his testimony that he had complained about back pain to Dr. Kingstone, but he said that the back pain he "sometimes" had before the accident was normal, and the pain he has had since the accident is "completely different." He gave no details about how his back pain changed after the accident. He testified that he did not remember whether Dr. Kingstone gave him any pills: "If he gave me pills, he gave me pills." I found this testimony evasive.

The Applicant conceded on cross-examination that he did not tell any of the doctors who saw him after the accident about his pre-accident back pain. He gave two explanations for this. First, he testified that the doctors asked him whether he had had any "back injuries or serious problems." The doctors' reports do not corroborate this testimony, but state simply that the Applicant reported no pre-accident history of back problems. The Applicant's second explanation for failing to tell the doctors about his pre-accident back problems was that he did not remember them. I did not find this evidence credible.

Dr. N. Clements, an orthopaedic surgeon who assessed the Applicant at the Insurer's request, reported the following impression in March 1995:

The x-ray [sic: CT scan] findings would suggest multiple level changes in his lumbar discs. This would be more in keeping with a degenerative process as opposed to an acute injury. I would be of the opinion that these degenerative changes, in all likelihood, pre-dated his accident. It is conceivable that as a result of the impact, that the changes at the L4-5 disc have become more pronounced radiographically.

Dr. M. Roscoe, an orthopaedic surgeon who assessed the Applicant at the request of his counsel, agreed that the Applicant probably had pre-accident degenerative changes:

The fact that there are documented disc abnormalities at several levels of the spine indicates that Mr. Machin most likely had a degree of pre-existing early degenerative wear and tear to his lumbar spine. This would be somewhat unusual in a young man, however, in view of his large size, it is my opinion that there was a significant pre-existent early degenerative change. However, by history this was completely asymptomatic. Had the accident not occurred, Mr. Machin may have developed some low back pain at some time in the future but this would be difficult to estimate. I would state that the M.V.A. in question initiated his symptoms related to his lumbar spine and are responsible for the initiation of symptoms to this susceptible area. [emphasis added]

Dr. Reynolds, a rheumatologist who reassessed the Applicant in January 1997 at the request of his counsel, responded to Dr. Clements opinion as follows:¹⁷

It is of course possible that these radiological findings could have pre-dated the accident and it is unclear as to what role they have played in the genesis of [the Applicant s] pain. Nonetheless, at the present time he has a chronic pain syndrome and I would expect that these radiological findings are not relevent to his ongoing current pain.

Dr. Reynolds gave no reason for this opinion and I do not accept it. I find that, more likely than not, the Applicant had developed symptomatic degenerative changes in his lower back before the accident.

The Applicant's condition after the accident:

In contrast to the objective evidence of the Applicant’s serious, though non-disabling, pre-accident health problems, there is little reliable evidence that the Applicant sustained a disabling injury in the accident.

(i) The surveillance evidence:

The Insurer terminated benefits effective February 21, 1995 based on the January 27, 1995 report of Dr. J. Mayer, a neurosurgeon who examined the Applicant at the Insurer's request on June 24, 1994 and January 25, 1995.¹⁸ Based on his assessment of the Applicant and the medical file, Dr. Mayer reported that the Applicant's acute local back pain and positive straight leg raising test suggested that the central disc herniation at L4-5, as shown in the two CT scans "could well be the source of this continuing and worsening pain." However, along with these objective signs of impairment, the Applicant displayed submaximal effort on testing and non-organic features, which suggest that volitional or psychological factors were playing a role in the Applicant's complaints. Dr. Mayer initially concluded that while there was no evidence of neurological injury, the Applicant could not return to work as a courier, though he could do a light modified job.

In January 1995, Dr. Mayer was shown a surveillance videotape taken on October 22, 1994.

The Insurer's private investigator videotaped the Applicant carrying what appears to be a sheet of prefabricated countertop measuring about 4 feet by 3 feet into an apartment.¹⁹ Once inside the apartment, the Applicant could only be seen through the windows from about chest height, but he appeared to be bending at the waist to put the countertop into place. A few minutes later, the Applicant and another person lifted the upper half of a wooden china cabinet and placed it on the ground. The Applicant then lifted what appears to be a dining room chair onto a table. The Applicant testified that the countertop weighed about 20 pounds, the china cabinet about 40 pounds, and the chair about 10 pounds. Although the Insurer's counsel challenged these weights on cross-examination, he offered no evidence to rebut the Applicant's estimates, and I accept them as reasonable.

On November 8, 1994, the Applicant was videotaped driving his station wagon and unloading a stroller from the back. Later the same day he was shown driving to the airport with his wife, unloading luggage from the trunk and loading it onto a luggage cart. One large duffel bag appeared to be very heavy as the Applicant and his wife each took a handle and lifted it onto the luggage cart.

On reviewing the videotape, Dr. Mayer concluded that the Applicant was exaggerating his disability, since his movements under surveillance were "within normal limits," in sharp contrast to his presentation on examination, particularly his professed inability "to bend at all" and his request that his wife dress and undress him during the physical examination. The Insurer terminated benefits on the basis of Dr. Mayer's final report.

Dr. Mayer's final report did not say that the Applicant is able to work as a courier. However, the differences noted by Dr. Mayer between the Applicant's performance when being assessed and his movements when unaware of being observed are significant.

The Applicant explained that on October 22, 1994, he was helping his brother-in-law move, but was given only the lighter tasks because of his back problems. I do not agree that the activities shown on the videotape are "light" tasks. The Applicant also explained that he helped with the move because he did not want to look like "a wimp" in front of his friends and family, and that he helped unload the car at the airport because he did not want the ladies to think he was not a gentleman. Nevertheless, I find it significant that the videotape shows the Applicant moving naturally and without any sign of guarding, pain or stiffness. He moves slowly, but I was not impressed that this had to do with pain rather than overweight. I find it significant that during the apartment segment, the Applicant participated in the heavy work though at least two other adults were present.

The Applicant's main explanation of the videotape evidence was that he has good days and bad days, and when he does things, he pays for it later. No witnesses were called to corroborate this testimony, which is inconsistent with the Applicant's reports of "severe and constant low back pain" preventing him from lifting more than 5 pounds with each hand (Total Rehabilitation Management Inc., September 16, 1994), "constant low back pain" (Dr. Wan, November 17, 1994), "constant 'hard' pain" (Ms. Stephens, November 28, 1994), pain "aggravated by any attempt at any movement" (Dr. Mayer, January 25, 1995), "fairly constant pain" (Dr. Reynolds, March 8, 1995), "constant low back pain aggravated by sitting, standing, bending or lifting" (Dr. Clements, March 10, 1995), "steady pain which prevents him from doing anything" (Dr. Ameis, October 31, 1995), and "severe" pain (Dr. Roscoe, January 8, 1997). The Applicant admitted on cross-examination that he has never told any of his doctors that he has good days and bad days. Only in October 1996, after the surveillance videotape was disclosed, did the Applicant tell Joel Kumove, a rehabilitation consultant to whom he was sent by his counsel, that he could carry out moderate physical activity at times but he would have pain several hours later. I can think of no other explanation for this discrepancy other than that the Applicant tailored his testimony in an attempt to explain away the surveillance evidence.

The Applicant’s movements as shown on the videotape are also inconsistent with his performance on physical examinations around that time. In November 1994, just a few weeks after the date of the surveillance, Dr. Wan, an internist who examined the Applicant on referral from his family doctor, reported that the Applicant showed "severe restriction of range of motion due to pain and stiffness." About four months later, Dr. Reynolds, a rheumatologist to whom Dr. Rathe had referred the Applicant, found that he had "very minimal" back movement because of pain. Dr. Clements, an orthopaedic surgeon who examined the Applicant at the Insurer’s request, reported in March 1995 that the Applicant’s wife undressed him for the examination (as she had when the Applicant was examined by Dr. Mayer). The Applicant also asked his wife to help him undress for his examination by Dr. Ameis, a physiatrist who assessed the Applicant for the Insurer in October 1995. When Dr. Ameis insisted that the Applicant do this himself, he observed no signs of pain or adaptation to impairment while the Applicant dressed and undressed, and noted that the Applicant displayed greater range of movement while doing so than he did on direct physical examination. These unexplained inconsistencies seriously undermine the Applicant’s credibility.

Jane Stephens, the occupational therapist who conducted the Functional Abilities Evaluation of the Applicant on November 29 and 30, 1994, a month after the surveillance, observed that the Applicant had "white paint splatters up both of his forearms on the second evaluation day when the discharge interview was being conducted." The Applicant testified that paint may have splattered onto his hands when his brother was painting. I find this explanation highly improbable: the Applicant admitted that he owned the apartment shown in the surveillance videotape and that he and his brother were renovating it. I find that the Applicant was painting the apartment in late November 1994, despite telling Ms. Stephens that "he is not involved in any of the home maintenance tasks and has never tried to do this as his friends do all the cleaning and maintenance."

The surveillance videotape and Ms. Stephens' observations persuade me that the Applicant is much less impaired than he claims to be and has appeared to be on direct functional and physical assessment.

(ii) Expert evidence:

The discrepancies between the Applicant's reported symptoms and his performance when unaware of being observed seriously undermine the medical evidence filed in support of his claim, which was, in any event, unpersuasive.

Dr. Rathe gave no reasons in support of his opinion that the Applicant is disabled from working as a courier. He appears to have relied almost entirely on the Applicant's claim of disability.²⁰ I find that Dr. Rathe acted as an advocate for his patient. The strongest evidence of his advocacy role is his statement that while the Applicant should not drive because of his sleep apnea, "this does not mean that the patient is not able to drive his vehicle for 1-2 hours per day - i.e. for leisure." Apart from the public safety concerns raised by this statement, it suggests that the Applicant has continued to drive since his licence suspension. The Applicant admitted at the hearing that he continues to drive, "but not every day." Dr. Rathe's report undermines the Applicant's claim that he cannot work as a courier driver because he cannot sit for more than 15 minutes at a time.

In March 1994, Dr. Rathe diagnosed fibromyalgia; his medical records do not set out the basis for this diagnosis. He referred the Applicant to Dr. W.J. Reynolds, a rheumatologist, who confirmed the diagnosis in March 1995, based on the Applicant's low back pain, non-restorative sleep, and tenderness in all but two fibrositic points. Dr. Wan also diagnosed fibromyalgia, but relied on Dr. Reynolds opinion without making an independent diagnosis.

Dr. Ameis did not accept the diagnosis of fibromyalgia. He concluded that the Applicant did not meet the criteria for fibromyalgia because he was tender only on the left side of his body (whereas bilateral tenderness both above and below the waist is characteristic of fibromyalgia), he was tender in many control points, and at some points he was tender to extremely light touch not significant of fibromyalgia. Dr. Ameis concluded that the Applicant had only three of the 18 recognized fibromyalgia tender points.²¹

In a follow-up report requested by Applicant’s counsel, Dr. Reynolds disputed Dr. Ameis view that motor vehicle accidents do not cause fibromyalgia. According to Dr. Reynolds, "there is a great deal of clinical evidence that this occurs." Dr. Reynolds appears not to have known that the Applicant’s low back pain and severe sleep apnea pre-dated the accident, as his report stated that the Applicant's "past health and family history are non-contributory." The Applicant's weight was not mentioned in his first report, and was mentioned without comment in the follow-up report. Dr. Reynolds second report also failed to address Dr. Ameis specific reasons for rejecting a diagnosis of fibromyalgia in this case, although he did state, without explanation, that the Applicant now had all 18 characteristic tender points.

Dr. Roscoe also rejected Dr. Reynolds diagnosis, stating: "I think probably what they [Dr. Reynolds and Dr. Wan] are describing is ongoing musculo-skeletal muscle tenderness and not the true diagnosis of fibromyalgia in this patient." I am troubled that Dr. Reynolds accepted the Applicant’s reported back pain as a symptom of fibromyalgia without considering diagnoses of lumbar sprain or herniated disc, though the Applicant’s lumbar CT scans were provided to him. Dr. Reynolds also failed to consider alternative causes for the Applicant's sleep disturbance, although he had been provided with the report from the Sleep Clinic diagnosing severe sleep apnea "likely obstructive in nature" and related to obesity.²² I am not persuaded that the Applicant suffers from fibromyalgia.

Dr. Reynolds' second report also introduced two new diagnoses: "low pain threshold" and "chronic pain syndrome". As has been stated in a number of arbitration decisions, "pain does not equate to disability" and pain without disability does not entitle an insured person to weekly benefits. I agree with the approach adopted by Director's Delegate Draper:

... there is no particular magic to the diagnosis of chronic pain syndrome for the determination of entitlement to weekly income benefits. The diagnosis may have some predictive value, but the question for the arbitrator was not whether [the applicant] was likely to return to work, but whether his injuries rendered him unable to perform the essential tasks of his or her occupation.²³

I find Dr. Reynolds' comments about "low pain threshold" and "chronic pain syndrome" of no assistance.

Dr. Wan, an internist, agreed that the Applicant was disabled from working as a courier because of his accident-related disc injury, sleep apnea and fibromyalgia. However, he relied on Dr. Reynolds' diagnosis of fibromyalgia, found no neurological signs, and appears not to have known that the Applicant's sleep apnea and low back pain pre-dated the accident. Nor did he see the surveillance videotape taken about 32 weeks before his first examination of the Applicant revealed "severe restriction of range of motion due to pain and stiffness." I place little reliance on his opinion.

In October 1996, Mr. Joel Kumove, a rehabilitation consultant with Evergreen Rehabilitation Services Inc., provided a vocational rehabilitation assessment of the Applicant at the request of the Applicant's counsel.²⁴ He concluded that the Applicant could not return to work as a courier driver as a result of his accident-related disc injury, fibromyalgia and sleep apnea.²⁵ I do not accept Mr. Kumove's opinion, which relied entirely on his interview with the Applicant and his review of the medical and rehabilitation documentation.

Dr. Martin W. Roscoe, an orthopaedic surgeon, assessed the Applicant in January 1997 at the request of the Applicant's counsel, and concluded that the Applicant could not return to work as a courier driver.²⁶ He concluded that the Applicant likely had pre-existing degenerative changes, but relied on the Applicant's report that these were "completely asymptomatic." In any event, he recognized that the Applicant's obesity and "somewhat abnormal pain response" were delaying his recovery, and significantly, his only treatment recommendations were directed to these problems. Dr. Roscoe's report did not persuade me that the Applicant is disabled as a result of the accident.

In addition to Dr. Mayer, the Insurer sent the Applicant to Dr. E. Klimek, a neurologist, Dr. Clements, an orthopaedic surgeon, and Dr. Ameis, a physiatrist. Dr. Klimek assessed the Applicant in January 1994. He could find no clinical sign of impairment except that the Applicant's neck mobility was "somewhat limited in anterior flexion by pain and he points to the right trapezius muscle region." Although he offered no opinion as to whether the Applicant was disabled, he found no wasting or "obvious muscle spasm" and commented that the Applicant, while "very much overweight," was "very well muscled."

Dr. Clements reported as follows:

It would be my interpretation that he, in all likelihood, has some mechanical dysfunction through these degenerative discs which is intermittently causing nerve root irritation. There is no objective evidence of organic radiculopathy in association with these changes to support ongoing nerve root compression and damage.²⁷

Dr. Clements concluded that the Applicant could return to work as a courier, based on his review of the medical documentation and reports of the surveillance videotape.

Like Dr. Clements, Dr. Ameis found no muscle spasm, wasting, or any sign of neurological involvement when he examined the Applicant on October 31, 1995. He felt that the Applicant's obesity was the only factor limiting his mobility. He noted a number of non-organic signs (for example, inconsistent results on sitting and supine straight leg raising) and observed that the Applicant could do much more when distracted than during the physical examination. Based on the CT scan results, he was prepared to accept that the Applicant has low back pain. However, he did not accept that the pain is disabling. He felt that the Applicant was unmotivated to return to work and was in fact malingering.

Further evidence of the Applicant's functional abilities comes from the FAE performed at Toronto Orthopaedic and Arthritic Hospital in November 1994. In his May 23, 1995 report for the Applicant's former representative, Dr. Wan relayed the Applicant's report that his back pain had worsened and now involved "noticeable radiation" into his left leg and foot after he was asked to lift 45 pounds (about 20 kg) during the FAE. The Applicant confirmed this in his testimony. Ms. Stephens did not remember the Applicant complaining about this test. Her report said that although the Applicant "had several complaints of increased pain during the evaluation which was prevented [sic] him from completing activities," and reported "more pain" at the end of each day of testing, he indicated on the visual analogue self-report that he had less pain at the end of each day than at the beginning (for example, he reported pain of 7/10 at the beginning of the first day, and 3/10 at the end). Ms. Stephens also testified that FAE testing is restricted in accordance with the doctor's referral letter. In this case, the referral documents mentioned the CT scan findings but placed no restrictions on the examination.²⁸ I could find no other reference to this episode in any of the other doctors' reports. I am not satisfied that the FAE significantly worsened the Applicant's symptoms.

Ms. Stephens concluded that the Applicant could not return to work as a courier driver, though he could return to sedentary or light work. She reported that the Applicant was able to lift a maximum of 11 kg. from floor to overhead and 18 kg. from knee to shoulder on one test and 20 kg. from below knee to waist on another, with a recommended frequent capacity of 9 kg. She concluded that he could lift in the moderate industrial work range, but could not meet the job requirements for a courier, which involved frequent lifting of up to 18 kg. up to 15-20 times a day.

However, Ms. Stephens reported that the Applicant displayed inconsistent results on functional testing. On cross-examination, she reluctantly conceded that fibromyalgia and a "ruptured" disc could "possibly" explain these results, but she reiterated that she would still expect consistent performance. As stated earlier, I do not accept that the Applicant suffers from fibromyalgia. Although both counsel put great emphasis on the difference - or lack of one - between a "ruptured" disc (as referred to by Dr. Rathe in his April 18, 1995 note and Dr. Wan in his May 23, 1995 report) and a "herniated" disc, they presented me with no evidence on the different meaning of these terms. In any event, the issue is whether the Applicant suffered a disabling disc injury as a result of the accident. The significance of inconsistent results on functional testing is to show that the Applicant is not performing at his best, despite being instructed to do so. While this is not in itself fatal to his claim, it undermines Ms. Stephens' finding that the Applicant cannot return to work as a courier because it suggests that he may have voluntarily restricted his performance in order to guarantee this result.

The doctors also disagreed about the mechanics of the injury. The police report²⁹ indicated that the Applicant's van was struck, while stopped, by a car travelling about 65 km/hour, suggesting an accident involving moderate forces. However, I accept Dr. Ameis' opinion that rear-end collisions generally result primarily in neck pain rather than low back pain. In this case, the Applicant's neck and shoulder pain resolved within a couple months of the accident. In addition, the Applicant testified that he was wearing a seatbelt at the time of the collision, which would tend to make a serious low back injury less likely. There was no evidence that the seat broke or that the Applicant's body struck any part of the vehicle, with the exception of the Applicant's report that his nose struck the steering wheel.

Dr. Roscoe disagreed with Dr. Ameis and felt that this accident "in a large man would be considered biomechanically significant." However, in reaching this conclusion, Dr. Roscoe clearly relied heavily on "the history of striking the bridge of his nose on the steering wheel," causing "a small cut and a bruise." I could find no reference to any injury to the Applicant's nose in Dr. Rathe's clinical note or form report prepared the day after the accident. There is no objective evidence that the Applicant injured his nose in the accident. I find that if the Applicant struck his nose at all, the impact was not serious enough to leave a cut or bruise worthy of any doctor's notice. In any event, Dr. Roscoe was only willing to say that the accident was sufficient to cause soft tissue injuries "and probably a discogenic lower back injury." [emphasis added] I find that this accident was unlikely to cause serious disc injury.

(iii) Credibility:

In addition to the inconsistencies between the Applicant's performance on assessment and his abilities when he is not aware of being observed, there are unexplained inconsistencies in the Applicant's complaints of sciatic pain. The Applicant testified that his low back pain sometimes extends into the entire length of his left leg down to his foot. He complained about occasional left leg pain to Dr. Wan (November 17, 1994), low back pain extending to his left buttock only (Dr. Ameis, October 31, 1995), and low back pain occasionally radiating down his left leg (Mr. Kumove, October 2, 1996 and Dr. Roscoe, January 8, 1997). I am troubled that I could find no reference to leg pain in Dr. Rathe's clinical notes between November 4, 1993 (the day after the accident) and May 23, 1995 (the last note filed in evidence).

In addition, the Applicant is reported to have complained about right leg pain (Dr. Klimek, January 18, 1994),³⁰ tingling in his right foot on weight-bearing (Dr. Smaye, August 1, 1995),³¹and bilateral leg pain, greater on the right than on the left (Dr. Clements, March 10, 1995).³²

Dr. Reynolds' first report stated that the Applicant complained of bilateral leg pain and paresthesiae (March 8, 1995),³³ but his second report (January 9, 1997)³⁴ stated that the Applicant began having pain down his left leg about three weeks after the accident and "does not have any pain in his right arm or right leg." Dr. Reynolds gave no explanation for the change.

An innocent explanation for the Applicant's varying reports about leg pain might be that the Applicant's central disc herniation intermittently irritated the nerve on one side or the other. But this explanation is inconsistent with the Applicant's testimony. On cross-examination, the Applicant initially testified that he did not remember telling Dr. Klimek he had right leg pain. Then, when asked whether he had ever told a doctor he had right-sided pain, he said "nothing serious" and testified that after the accident, his pain was in his left leg. A few questions later, he testified that he had never told anyone he had a problem with his right leg. When asked whether Dr. Klimek's report was inaccurate, the Applicant testified that he could not say whether it was accurate or not.

When Mr. Edwards asked the Applicant whether he had told Dr. Clements he had pain in both legs, worse on the right, the Applicant again stated that his pain was in his left leg. Asked whether Dr. Clements was inaccurate in his report, the Applicant stated that he might have said he had a problem on the right side but it was not accident related, and that it was his left-sided pain that was accident-related. Mr. Edwards then asked whether he had told the doctors his right-sided problems were unrelated to the accident. The Applicant said he did not know what the doctors wrote. He also testified that he did not know whether he had been having a right leg problem when he saw Dr. Clements. I found the Applicant's testimony about this issue evasive and not credible. I find that the Applicant manufactured or significantly exaggerated his complaint of leg pain in order to bolster his case.

(iv) Motivation:

The Applicant has also shown little if any, interest, in his own treatment and rehabilitation. I heard no evidence that he ever tried to return to work. After being diagnosed with severe sleep apnea in June 1994, the Applicant did not return to the Sleep Clinic until Dr. Zamel wrote Dr. Rathe in March 1995 about the Clinic's "repeated efforts" to follow up with the Applicant.³⁵Even if I accept the Applicant's explanation that he did not pursue nasal CPAP treatment because he could not afford it (and I received no independent evidence of the cost), the Insurer is not responsible for the Applicant's ongoing impairment relating to this condition, which I have found to be unrelated to the accident. As well as testifying that he stopped the weight loss program after two weeks because the Insurer refused to pay for it, the Applicant also testified that he was afraid of diets because they must be maintained.

In April 1995, Dr. Rathe referred the Applicant to Dr. J.E. Siegel, a psychologist. Dr. Siegel did not think the Applicant was psychologically disabled, but found that he had limited resources for coping with pain. Dr. Siegel recommended 6-10 sessions of individual counselling, relaxation training and pain management education. The Applicant attended three sessions, then missed the next two sessions. In June 1995, Dr. Siegel discharged the Applicant, on the basis that he did not have "sufficient motivation to profit from additional counselling sessions at this time." Ms. Stephens also commented that the Applicant was "lackadaisical" in his performance during the FAE. For this reason, she recommended that the Applicant participate in a work hardening program, but that it be discontinued after a few weeks if he did not make a good effort every day. I find that the Applicant's lack of motivation suggests either that the Applicant's symptoms are not as serious as he claims or that he is partly responsible for his failure to recover.

(v) Conclusion: weekly income benefits:

As stated earlier, the Applicant's CT scan results are not sufficient to prove that his back problems are symptomatic (much less disabling). The only objective evidence that the Applicant has low back pain are the reports of muscle spasm found by some of the doctors who have assessed the Applicant. Other signs of serious back injury are absent - muscle wasting, positive straight leg raising, abnormal posture, gait or spinal rhythm, abnormal reflexes, sensory deficits or weakness. Moreover, the Applicant provided no details about what he can and cannot do since the accident either at home or at work, and no independent lay evidence was led to corroborate the Applicant's claim of disability. Accordingly, this case, like many other cases of chronic pain not explained by the objective evidence, turns on my assessment of the Applicant's credibility. For the reasons set out above, I did not find the Applicant credible.

Because of the CT scan results and the findings of muscle spasm, I am prepared to accept that the Applicant experienced low back pain after the accident. However, I am not satisfied that any serious symptoms lasted for more than a short time. In any event, I find that the Applicant's pre-existing sleep apnea, obesity and degenerative back condition, along with his failure to take reasonable steps to obtain treatment and rehabilitation for his symptoms, are by far the most significant contributors to the Applicant's residual complaints. I am not satisfied that the Applicant is disabled from returning to work as a courier driver as a result of injuries sustained in the accident of November 3, 1993. Accordingly, I do not find it necessary to consider whether the Applicant satisfies the more stringent test for benefits after 156 weeks.

Repayment of Weekly Benefits:

The Insurer sought repayment of weekly benefits paid between October 22, 1994, the date of the first surveillance, and February 22, 1995, when benefits were terminated.

Subsection 27(1) of the Schedule states that "a person must repay to insurer any benefit received under this Schedule that is paid to the person through error or fraud." In applying this test, arbitration decisions have consistently adopted the analysis set out by Senior Arbitrator Susan Naylor in Levenson.³⁶ After stating that the term "fraud" is "readily understood," she drew the following conclusions about the term "error:"

It is not sufficient therefore to establish merely that an applicant has received benefits to which he or she is subsequently adjudged not to be entitled. To give meaning to the terminology of the section, the stipulation that benefits be paid "through error" in order to be recoverable must require that responsibility for the payment be attributable in some material way to the actions of the applicant.

In a recent appeal decision, Director’s Delegate Draper reaffirmed "the view underlying Levenson that an 'innocent' insured person should be able to rely on the benefits he or she receives without being left vulnerable to a later claim for repayment based on new calculations or a different interpretation of the Schedule." He also reaffirmed the principle that "[i]f the insured person materially contributed to the overpayment, it must be repaid."³⁷

The surveillance evidence was important but not determinative in this case: it did not disprove the Applicant's claim to have residual symptoms, and by itself it would not have been sufficient to disprove his claim of disability or justify termination of benefits. My disposition of this case is not inconsistent with the Applicant suffering ongoing symptons unrelated to the accident. The Insurer’s request for a repayment order is denied.

Medical and Rehabilitation Benefits:

Although the Applicant's application for arbitration and the pre-hearing letter identified a number of outstanding medical and rehabilitation benefits issues - prescription drugs, chiropractic treatment, physiotherapy treatment, and two medical reports - the Insurer submitted at the hearing that there are no outstanding medical and rehabilitation claims. However, the Applicant seeks provision of a weight loss program and nasal CPAP therapy.

I was provided with no evidence about nasal CPAP therapy, and in any event, I have found that the accident did not significantly or materially contribute to or exacerbate the Applicant's pre-existing sleep apnea problem. Nor am I satisfied that the accident played a significant role in the Applicant's worsening weight problem. Both claims are denied.

The Applicant also wants the Insurer to provide rehabilitation and case management services through Evergreen Rehabilitation Inc., and requested that these benefits be ordered on an interim basis. The Applicant clearly needs rehabilitation benefits directed to his obesity, sleep apnea, deconditioning, motivation and residual pain. However, I am not satisfied that the Applicant's ongoing problems resulted from the accident. For all the reasons given above, the claim is denied.

Special award:

The Applicant seeks a special award under section 282(10) of the Act based on the Insurer's decision to terminate weekly benefits based on the surveillance evidence and Dr. Mayer's report, and the Insurer's refusal of rehabilitation programs.

I find that I have no jurisdiction to order a special award because I have not awarded the Applicant any further benefits.³⁸ In any event, I am not satisfied the Insurer acted unreasonably.

The Applicant's claim for a special award is denied.

Order:

The Insurer shall reimburse the Applicant for his arbitration expenses. If the parties are unable to agree about the amount owing, the matter may be brought before an Arbitrator.

June 27, 1997

Nancy Makepeace 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 Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Exhibit 1, Tab 18, September 20, 1994
3. 3Dorland's Illustrated Medical Dictionary (28th edition) defines "apnea" as "cessation of breathing" and "obstructive sleep apnea" as "sleep apnea resulting from collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep; seen primarily in middle-aged obese males".
4. 4Exhibit 1, Tab 3
5. 5Exhibit 1, Tab 23
6. 6Exhibit 1, Tab 13
7. 7As evidenced, for example, by Dr. Rathe's notes for November 28 and December 5, 1992.
8. 8For example, Dr. Mayer's reports indicate that the Applicant gained 10 pounds between his first assessment in June 1994 and his second assessment six months later in January 1995.
9. 9Exhibit 1, Tab 25, January 25, 1995; Exhibit 1, Tab 41, November 15, 1995
10. 10Exhibit 1, Tab 4, December 2, 1993
11. 11Defined by Dorland's as "alternating attacks of bradycardia and tachycardia". "Bradycardia" is "slowness of the heartbeat, as evidenced by slowing of the pulse rate to less than 60." "Tachycardia" is "excessive rapidity in the action of the heart; the term is usually applied to a heart rate above 100 beats per minute".
12. 12Exhibit 1, Tab 15, July 25, 1994
13. 13Exhibit 1, Tab 39, May 3, 1994
14. 14Exhibit 1, Tab 31, April 11, 1995
15. 15Exhibit 1, Tab 34, June 8, 1995
16. 16Dr. Vlasschaert's first report indicated that the Applicant's sleep problems had been developing for some time: "He has had this problem with perennial nasal congestion which seems to be worse at night. There is no seasonal change and he has no hay fever. He has been snoring loudly getting progressively worse over the past two years ..."
17. 17Exhibit 4
18. 18Exhibit 1, Tabs 14, 16 and 25
19. 19videotape. I place no reliance on the discrepancy.
20. 20Exhibit 1, Tab 11, May 20, 1994; Exhibit 1, Tab 1, April 18, 1995
21. 21Exhibit 1, Tab 41
22. 22Exhibit 2, Tab 1
23. 23Bertsouklis v. Liberty Mutual, Appeal P-006499, May 28, 1996, p. 7 [cite please]
24. 24Exhibit 3
25. 25Mr. Kumove also referred to depression and anxiety, which were reported by several other experts as well. I heard no evidence or submissions about the Applicant's psychological condition.
26. 26Exhibit 5
27. 27Exhibit 1, Tab 27, March 10, 1995
28. 28Exhibit 1, Tab 20
29. 29Exhibit 1, Tab 2
30. 30Exhibit 1, Tab 7: "When the pain is particularly bad, and this occurs perhaps twice a week, he experiences pain into his right leg. He said that the pain is also felt in his right big toe. It does not go to the left leg at all."
31. 31Exhibit 1, Tab 38
32. 32Exhibit 1, Tab 27
33. 33Exhibit 1, Tab 26
34. 34Exhibit 4
35. 35Exhibit 1, Tab 28
36. 36Levenson and The General Accident Assurance Company of Canada (February 18, 1992), OIC A-000260
37. 37Lunn and State Farm Mutual Automobile Insursance Company (April 30, 1997), OIC P-013860
38. 38Subsection 282(1) of the Insurance Act says: "If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled shall award ..." [emphasis added].