Neutral Citation: 1997 ONICDRG 136

OIC A96-000786

ONTARIO INSURANCE COMMISSION

BETWEEN:

TEODOR BRAIT

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

Teodor Brait was injured in a motor vehicle accident on December 15, 1992. He received statutory accident benefits, under the Schedule,¹ from Allstate Insurance. Allstate terminated weekly income benefits effective December 22, 1995. After the parties failed to resolve a dispute about the benefits through mediation, Mr. Brait 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. Brait entitled to further weekly income benefits after December 22, 1995, under the terms of section 12(5)(b) of the Schedule? Is he entitled to interest on any amounts owing?

2. Is Mr. Brait entitled to a special award under section 282(10) of the Insurance Act?

3. Is Mr. Brait entitled to his expenses incurred in the hearing?

Result:

1. Mr. Brait is entitled to weekly income benefits from December 22, 1995, ongoing, at the rate of $452.40 per week, and to interest according to the terms of section 24 of the Schedule.

2. Mr. Brait is entitled to a special award of $5,000.00, inclusive of interest.

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

Hearing:

The hearing was held in Hamilton on May 26, 27, and 28, 1997, before me, K. Julaine Palmer, Arbitrator. Details of those present at the hearing, the witnesses, and exhibits are in the Appendix.

Evidence and Findings:

Background

Mr. Brait was injured in a motor vehicle accident on December 15, 1992 as he travelled to work. The roads were slippery and it was foggy. His car was rear-ended. The driver of the other vehicle reported to the police that he was travelling about 45 km/hr. before the impact. Mr. Brait reported to the police that he was travelling about 20-25 km/hr. The trunk of his car was pushed in and the front seat broke from its moorings.

Mr. Brait does not remember much about the events of the next few hours. Reports filed at the hearing indicate that his boss may have taken him home after the accident. However, before noon he arrived at the Emergency Department of the Hamilton General Hospital. He was complaining of dizziness and pain in his right shoulder and neck. He had a headache. He did not think he had lost consciousness following the accident. Later that same day Mr. Brait was examined by Dr. A.B. O'Sullivan, who was his brother's doctor. Dr. O'Sullivan has acted as Mr. Brait's general practitioner since that time. Mr. Brait testified he did not have a regular family doctor before the accident.

Mr. Brait participated in physiotherapy after the accident. He also had some chiropractic treatment. In April and May 1993, he twice attempted, unsuccessfully, to return to his former job as a labourer laying sewer pipe. He was treated by a physiatrist and a psychiatrist. He participated in a lengthy program of rehabilitation at a traffic injury clinic and had a 15-week work trial coordinated by the Vocational Assessment Unit of the McMaster-Chedoke Hospital. He was evaluated on several occasions by doctors at the request of Allstate. Two different sets of rehabilitation caseworkers and placement specialists worked with him over a period of nearly three years. However, Mr. Brait has continued to experience symptoms that he attributes to his motor vehicle accident.

The Dispute

Mr. Brait received weekly income benefits for 156 weeks following the accident. Allstate refused to pay him further weekly benefits. In November 1995 Allstate sent him a letter explaining its decision. The letter is difficult to understand. It states, in part, as follows:

The policy states in Section 2.26, "the Insurer is not required to pay a weekly benefit under Section 2.22....(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education or experience (sic)". As you are still working, even at a part time or not full time basis, you meet the requirements outlined in part (b) of the above quotation.

Pursuant to Dr. Margulies' report dated March 20, 1995, your condition is not entirely attributable to the accident and subsequently, your medical status as a direct result of injuries sustained in the above accident at the 3 year mark post-accident on December 15, 1995 would not prevent you from engaging in any occupation or employment that you are reasonably suited by education or experience.

At the hearing, the Insurer raised two defences. First, Allstate claimed Mr. Brait was not continuously prevented from working after the accident. Secondly, or in the alternative, Allstate submitted that if Mr. Brait was found to be disabled to the required extent, it was not as a result of injuries he received in the motor vehicle accident.The evidence and argument presented by the Insurer related mainly to the second defence—the cause of Mr. Brait's difficulties.

Causation

Mr. Brait's main source of disability, since the termination of his physiotherapy treatment, has been psychological rather than physical. I find he suffers from a severe anxiety disorder. This condition has been labelled a "post traumatic stress disorder (PTSD)" by some health care practitioners. Dr. Chaimovitz reported that "this anxiety disorder appears to be post traumatic in nature, but certainly not a post traumatic stress disorder in the strict sense."² Dr. Howell termed it an "anxiety disorder - post traumatic - severe."³ I agree with Dr. Margulies that Mr. Brait's symptoms do not appear to fit the profile required by the DSM-IV⁴ for the classic PTSD diagnosis. However, as has been frequently observed, arbitrators are not charged with formulating an accurate medical diagnosis of Mr. Brait's problems. We are less concerned with what the condition is called than with its symptoms and how they relate to the question of eligibility for benefits under the Schedule.

From February 1993, those assisting Mr. Brait in his rehabilitation have been concerned that his recovery, which initially seemed to be proceeding normally, was being prolonged by the appearance of symptoms of acute anxiety and nervousness. Dr. Gary Chaimowitz, a psychiatrist who examined Mr. Brait for Allstate on August 23, 1993 wrote as follows, in answer to a question from the Insurer about causation:

From a psychiatric perspective, this gentleman appears to have an anxiety disorder. ... Certainly it appears that these symptoms may have come on two or three months after his accident. Although this is not the usual way these symptoms occur, they are certainly within the range of possibility for post traumatic symptoms. There certainly was likely to be some pre-existing anxiety that was magnified, given the current situation. One could say, however, that his anxiety symptoms that he currently presents with would not have been there to the same extent had there not been a motor vehicle accident.

Dr. John Schneider, Ph.D., conducted a neuropsychological evaluation of Mr. Brait in July 1993. He had great difficulty in interviewing and conducting testing of Mr. Brait due to his agitation, anxiety, reported headache and concentration difficulties. Dr. Schneider had only limited background medical information on Mr. Brait, namely one medico-legal report by physiatrist Dr. Fionnuala Killian, dated June 30, 1993. Dr. Schneider recommended that Mr. Brait's emotional state be brought under control through psychiatric intervention and drug therapy. Dr. Schneider felt he could then perform a more thorough exploration of possible neuropsychological impairment. It was not clear to Dr. Schneider what role the motor vehicle accident played in Mr. Brait's emotional disorder.

The severity of Mr. Brait's continuing symptoms ultimately led Allstate to send Mr. Brait to Dr. Margulies and to question the origin of these complaints. Dr. Margulies met Mr. Brait once, on January 5, 1995, for 1.5 hours.

In his report of March 20, 1995 following that examination, Dr. Margulies postulated three possible sources of Mr. Brait's psychological disability: (1) that the "severe, primarily depressive disorder" was caused by the accident, (2) that the disorder would have developed even if the accident had not occurred, as a result of endogenous or biological factors, or (3) that the disorder arose out of a combination of factors, "endogenous and reactive to persisting pain."

At the hearing, Dr. Margulies testified that on a balance of probabilities, it was his expert opinion that the source of Mr. Brait's psychological disability was spontaneous or endogenous, and unrelated to the motor vehicle accident. Dr. Margulies' opinion is the main evidence in support of Allstate's theory of the case.

From my reading of his report, Dr. Margulies was not as definite in that opinion in March 1995 as he appeared to be at the hearing two years later. In his original report, from the records supplied to him, Dr. Margulies concluded that Mr. Brait's emotional state after the accident appeared to have been essentially unremarkable until June of 1993 when he was noted to be highly agitated, distressed, stuttering, weepy and tremulous. Dr. Margulies wrote as follows:

Reasons for their [the above-noted symptoms'] development are by no means clear and their occurrence approximately six months following the subject accident may or may not be coincidental. On the basis of available data, it is difficult to state with any certainty what, if any, relationship there may be between the subject accident and its sequelae and Mr. Brait's development of a severe, primarily depressive disorder. It is possible than an individual such as he, insecure and suspicious to begin with, psychologically unsophisticated and linguistically and culturally unable to comprehend the nature and significance of his injuries and treatments attempted, felt that he was, so to speak, out of control and reacted thereto with the devlopment of a depressive disorder, secondarily compounded by the development of sufficient anxiety symptoms to warrant the additional diagnosis of and anxiety disorder. It is also possible that the development of this depressive disorder was entirely coincidental to the subject accident and would have developed even if the accident had not occurred. In my experience, such a severe depressive illness of near psychotic proportions is rarely found in association with persisting or chronic pain and tends to occur more often as a result of endogenous or biological factors, often unrelated to external circumstances. While either explanation may be valid, it is also possible that the combination of such factors - endogenous and reactive to persisting pain - combined and conspired to result in this depressive illness which, despite what has amounted to some one and a half years of psychiatric therapy, has persisted and has continued to render Mr. Brait significantly impaired. At this point in time, a reassessment of his treatment program should be undertaken ....

Allstate received this report in March 1995. It continued to pay Mr. Brait weekly income benefits until December 1995. According to its November 8, 1995 letter to Mr. Brait explaining the reason for the termination of his benefits, a portion of which is set out above, Allstate thought that Dr. Margulies' opinion meant that Mr. Brait's "condition is not entirely attributable to the accident."

Dr. Margulies did agree on cross-examination that the more time passes between a motor vehicle accident and the onset of a depression, the less likely that the depression was caused by the accident. However, he reiterated his view that Mr. Brait's dysfunctional state is a result solely of a depressive illness that has its origin in Mr. Brait's biogenetical make-up and needs no triggering factor. Dr. Margulies refused to accept as valid the diagnosis of "anxiety" made by Dr. L. Beard upon Mr. Brait's attendance at a hospital emergency department on March 10, 1993 in a high state of agitation. Dr. Margulies was of the opinion that a history of acute onset was more suggestive of an endogenous illness. However, I find from the clinical notes of Dr. O'Sullivan and the notes of the Canadian Back Institute and Lucio Amodeo, rehabilitation caseworker, that Mr. Brait's state of agitation was becoming increasingly more pronounced as February passed. On this basis I find that Dr. Margulies' conclusion that Mr. Brait's emotional state was "essentially unremarkable" until June 1993 to be erroneous.

Mr. Brait was examined by Dr. Michael M. Howell, a fellow of the American Academy of disabilitiy Evaluating Physicians, on February 25, 1995. Dr. Howell reported as follows under the heading "Causation:"

Based upon the available information, to a reasonable degree of medical certainty, there is a probable causal relationship between the examinee's current complaints and limitations of chronic pain and the reported injury.

To a reasonable degree of medical certainty, there is a aggravational causal relationship between the examinee's current complaints and limitations of severe anxiety and aggravation and the reported injury.

[emphasis in original]

Dr. Ali Ghouse, a physiatrist who has examined and treated Mr. Brait on seven occasions in 1993 and 1996, testified at the hearing. He described Mr. Brait's course of treatment for neck and back pain and anxiety, including multiple trigger point injections and blocking of the occipital nerve. He believed Mr. Brait to be caught in a vicious myospastic pain cycle following the accident. Dr. Ghouse was frustrated that psychological evaluation and counselling that he recommended in 1996 had not taken place. Dr. Ghouse believed that Mr. Brait was functioning quite well prior to the accident, but that he had not been capable of any kind of work after the accident and would not be in the future without a significant change in his anxiety problem.

The case law which has developed at the OIC about causation recognizes that the accident need not be the sole cause of the disabling condition, pursuant to the provisions of section 12 of the Schedule. An applicant is required to establish, on a balance of probabilities, that he was injured as a result of the accident. This requires more than some contribution by the accident to his condition. Numerous decisions of the Commission have suggested that the contribution of the accident must be "significant, "or "material."⁵

Under our law, a person who is disabled for a prolonged period remains eligible for statutory accident benefits even if the effects of a similar accident might have been shaken off by another insured person after a short period of physiotherapy. I find Mr. Brait is what law students call a "thin-skulled" applicant.

Mr. Brait grew up in Romania and endured life under a repressive government. His parents died early in his life, under circumstances which are unclear to him even yet. His first wife died, under questionable circumstances, after he fled from Romania alone in the 1980's. His two children from that marriage still remain with his first wife's parents in Romania. I accept that the circumstances of his life were such that Mr. Brait was a more likely candidate than some others to develop psychological symptoms following a motor vehicle accident.

Until the accident, Mr. Brait was a hard-working labourer who had made a new life with his second wife and their daughter in Hamilton. I find that within two months of the accident, Mr. Brait had already received drug therapy from his doctor to attempt to alleviate ever-increasing symptoms of anxiety, in response to his treatment following the motor vehicle accident. Based on these facts and the preponderance of medical opinion, as set out above, including the earlier ambivalent opinion of Dr. Margulies, I find that Mr. Brait's disorder is more probably than not caused by the accident. I do not accept the opinion proferred by Dr. Margulies at the hearing that this disorder would have arisen spontaneously, even without the accident, and that the timing is merely coincidental.

Since I have accepted that the motor vehicle accident caused his disability, I need to consider whether Mr. Brait's injuries continously prevent him from engaging in any occupation for which he is reasonably suited by his education, training, or experience.

Ability to Work

During the fall and winter of 1994-95, Mr. Brait attended a 15-week work trial with the Vocational Assessment Unit of Chedoke-McMaster Hospitals. The best evidence on the issue of Mr. Brait's ability to work comes from the detailed records of this program and the oral evidence of Mr. Brait's work station coordinator, Mike Nakoneshny. I find that much care and thought went into the selection of a work placement for Mr. Brait, focussing on his individual profile, so as to maximize his chances of success in the placement. Mr. Nakoneshny testified that on the days that he worked Mr. Brait was punctual and performed all the duties assigned to him, working with a small team of groundskeepers on the campus of a large hospital and university. He was unable, however, to remain at work for full-time hours and had difficulty maintaining regular attendance. The case manager in her concluding report wrote that unless Mr. Brait was able to reduce or better manage his anxiety and stress, he would be unsuccessful in obtaining or maintaining open, competitive employment.

I accept that Mr. Brait made a genuine effort to cope with employment in the work trial but was largely unsuccessful. I do not find that this trial of work demonstrated that Mr. Brait was able to work at a suitable job, as Allstate's letter of November 8, 1995 seems to have suggested. I have no other evidence that Mr. Brait was "still working" at any part-time job. I find the level of anxiety Mr. Brait displayed would make it impossible for him to maintain any type of suitable employment. Indeed, the reports to Allstate in the fall of 1995 of Dale Smith, placement specialist, and Tony DeMartines, rehabilitation consultant, outline in detail the anxious behaviours Mr. Brait exhibited in several interview situations. Mr. DeMartines concluded that Mr. Brait was "unemployable at this time" in his report of September 15, 1995. In his closing report of December 6, 1995, Mr. DeMartines noted his doubts that further attempts at work placements would be successful. No evidence suggests that Mr. Brait's condition has improved significantly since September 1995. In fact, Dr. Ghouse, Mr. Brait's physiatrist, was disturbed that the treatment he had recommended for Mr. Brait in 1996 had not taken place.

Dr. Ghouse was hopeful in his testimony that with further psychological evaluation and counselling, Mr. Brait will achieve greater functional improvement. In Dr. Ghouse's opinion, if Mr. Brait's anxiety can be eliminated, Mr. Brait will be able to return to employment. It is to be hoped that the parties will cooperate to arrange such treatment in order to achieve the goal of returning Mr. Brait to work.

Special Award

Section 282(10) of the Insurance Act, R.S.O. 1990 c.I.8, as amended, provides for an additional payment to be made by an Insurer where the arbitrator finds that the Insurer "unreasonably ... withheld" payments under the Schedule. In the past, I have considered that conduct deemed "unreasonable" could be viewed as "behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate."⁶ In order to attract a special award, the Insurer's conduct has to be more flagrant than just making a wrong or poorly supported decision. However, the conduct need not be malicious.The behaviour must fall short of the sound and moderate approach expected of an insurer providing statutory accident benefits in a no-fault, first party system.

In this case I have found that Allstate was wrong to have stopped payment of weekly income benefits to Mr. Brait as of December 15, 1995. Allstate purported to stop the benefits, as noted in the letter of November 8, 1995, because Mr. Brait was "still working, even at a part time or not full time basis" and because Dr. Margulies' opinion was that Mr. Brait's condition was "not entirely attributable to the accident." Mr. Brait was not working in the fall of 1995. In fact, the reports to Allstate of the placement specialist and rehabilitation consultant outline in great detail Mr. Brait's anxious behaviour when he attempted a workstation as an office cleaner in August 1995 and on the day of an interview for work at a food company in September 1995. The rehabilitation consultant doubted that Mr. Brait would be able to tolerate even working in a sheltered environment. Dr. Margulies' report raises three possible conclusions about the source of Mr. Brait's condition, only one of which is not compensable under the Schedule. In addition, "sole cause" is not the eligibility test the Schedule prescribes. Allstate had received at least two other medical opinions which linked Mr. Brait's psychological disability to the motor vehicle accident. Even Dr. Margulies recognized, in January 1995, that Mr. Brait remained "significantly impaired."

I find no reasonable basis for Allstate's decision to terminate Mr. Brait's weekly income benefits. However, this case is not the most egregious example of unreasonable conduct which would compel the award of a 50% penalty. In this instance I find that an award of $5,000.00, inclusive of interest, is appropriate.

Expenses

Mr. Brait seeks an award of the expenses he has incurred in this arbitration. He has been successful and hence an award to him of his expenses is justified. I have been advised that no written offers to settle were made by either party to this proceeding.⁷ Therefore, I exercise my discretion in Mr. Brait's favour to grant him his expenses according to Schedule F of the Dispute Resolution Practice Code (Third Edition)—April 15, 1997 and Ontario Regulation 464/96. In the event of disagreement, a party may apply to the Registrar for assessment of the expenses.

Order:

1. Allstate Insurance Company of Canada shall pay Mr. Brait weekly income benefits from December 22, 1995, ongoing, at the rate of $452.40 per week, plus interest according to the terms of section 24 of the Schedule.

2. Allstate Insurance Company of Canada shall pay Mr. Brait a special award of $5,000.00, inclusive of interest, an amount to which he is entitled according to the provisions of section 282(10) of the Insurance Act.

3. Allstate Insurance Company of Canada shall pay Mr. Brait his expenses of the arbitration.

July 23, 1997

K. Julaine Palmer Arbitrator

Date

Appendix

Present at the Hearing:

Applicant: Teodor Brait

Mr. Brait's Representative: L.Craig Brown Barrister and Solicitor

Allstate's Representatives: Harry J. Daniel and Grace Pang Barristers and Solicitors

Allstate's Officer: Tony Cioffi Staff Claim Representative

Witnesses:

Teodor Brait, Ali T. Ghouse, Mike Nakoneshny, Alfred Margulies

The parties filed 13 exhibits at the hearing, including 2 medical briefs.

Footnotes

1. 1The Schedule is Ontario Regulation 672. Prior 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 Ontario Regulation 672.
2. 2Dr. Ghouse, the physiatrist, is one of those who uses the term "post traumatic stress disorder" in regard to his diagnosis of Mr. Brait's problems. However, he was not asked at the arbitration if he used that term in the classic DSM-IV definitional sense, or if he used the term more in the way Dr. Chaimovitz has described. In my opinion, he used the term more in the latter sense, as describing a cluster of symptoms of anxiety and depression following a trauma with accompanying insomnia, diminished appetite, restlessness, teariness and anxiety state.
3. 3Report of Independent Medical Evaluation conducted on 25 February 1995, at p. 20.
4. 4DSM-IV is the official diagnostic manual of mental disorders of the American Psychiatric Association, published in 1994
5. 5Donna Flemming & Wawanesa Mutual Insurance (April 28, 1992), OIC A-000406; Lawrence Whitney & Co-operators General Insurance Company (July 10, 1996), OIC A-001005 (upheld on appeal); Barbara Edwards & State Farm Mutual Automobile Insurance (February 26, 1996), OIC P-001707; Bahadur Chhokar & Allstate Insurance Company of Canada (December 2, 1993), OIC A-004294; Chor Ting Lui & Wellington Insurance Company (April 28, 1993), OIC A-001894; Jennifer I. Rustico and Royal Insurance Company of Canada (February 15, 1994); OIC A-002539; Gail MacNeill & Royal Insurance of Canada (October 1, 1994), OIC A-000057; P.S. and Toronto Transit Commission (Markel Insurance) (May 4, 1994), OIC A-001116; Shelly L.P. and Royal Insurance Company of Canada (June 23, 1995), OIC A-002235 (upheld on appeal); Filomena Furtado and York Fire and Casualty Insurance Company (June 22, 1995), OIC A-008927 (under appeal); Bruna Pisani and Simcoe & Erie General Insurance Company and Canadian General Insurance Company (December 11, 1995), OIC P-00039297/P-005693; Dragica Mladenovic & Dominion of Canada General Insurance Company (September 11, 1995), OIC A-008849, (under appeal); David Freeman & Wellington Insurance Company (October 16, 1995), OIC A-013578; Narinder Tiwana & Allstate Insurance Company of Canada (February 13, 1996), OIC A-950155; Klime Milevski & State Farm Mutual Automobile Insurance Company (June 6, 1996), OIC A-010292; Ms. B & Non-Marine Underwriters, Members of Lloyds, London, England (June 24, 1996), OIC A-013947; Ghenet Workhu & Cooperators General Insurance company, (August 29, 1996), OIC A-002172 .
6. 6Plowright and Wellington Insurance Company, OIC A-003985, October 29, 1993, at p. 17.
7. 7See section 75 of the Dispute Resolution Practice Code (Third Edition), April 15, 1997.