Neutral Citation: 1997 ONICDRG 233

OIC A96-001135

ONTARIO INSURANCE COMMISSION

BETWEEN:

ABDUL MALIK

Applicant

and

GAN CANADA INSURANCE COMPANY

Insurer

DECISION

Issues:

Mr. Malik is a 40-year-old cab driver who was injured in a car accident on December 8, 1993. He claims he cannot return to any type of work. His Insurer, Gan Canada (Gan), paid him weekly income benefits¹ until March 2, 1995, on the basis that he could not return to his job as a cab driver. Mr. Malik disputes the termination, and claims that Gan is obliged to pay him income benefits until today.

Mr. Malik's claim involves a two-fold test:² for the first three years after the accident, that is until December 8, 1996, he must demonstrate that he suffers a substantial inability to perform the essential tasks of his job as a cab driver. Thereafter, the test becomes much stricter - Mr. Malik must prove that he is unable to engage in any occupation for which he is suited by education, training or experience. The issues in this hearing, therefore, are:

1. Is Mr. Malik entitled to weekly income benefits for any period between March 2, 1995 and December 8, 1996, on the basis that he cannot return to his job as a cab driver?

2. Is Mr. Malik entitled to weekly income benefits for any period beyond December 8, 1996, on the basis that he is disabled from any occupation for which he is reasonably suited by education, training or experience?

3. Is Mr. Malik entitled to a special award because Gan unreasonably withheld or delayed paying benefits?

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

Result:

1. Mr. Malik is not entitled to weekly income benefits for any period between March 2, 1995 and December 8, 1996.

2. Mr. Malik is not entitled to weekly income benefits for any period beyond December 8, 1996.

3. Mr. Malik is not entitled to a special award.

4. Mr. Malik is entitled to one third of his expenses.

OVERVIEW:

Mr. Malik lives in Toronto with his wife and three children aged 5, 3 and 1. He came to Canada in 1986 with the equivalent of a Grade 12 education. He worked as a busboy in Montreal for several months and then moved to Toronto, where he worked as a general labourer for a short time. He then drove a forklift in a factory for approximately three years. In the year leading up to this accident he worked as a cab driver. His essential tasks in that work consisted mainly of driving customers between locations and helping them load and unload luggage, groceries, or packages. He testified that in the two weeks preceding this accident he drove 12-hour days, seven days a week. The job requires prolonged sitting.

The accident happened on December 8, 1993, when Mr. Malik was parked in a taxi line-up waiting for a fare. He had just got out of his taxi and was walking in front of it when another taxi backed into him, pinning him between the two cars. He felt intense pain in his legs and was taken to St. Michael's hospital, where he was told that his legs were not broken. He was released after several hours.

He consulted his family doctor, Dr. Lockhat, on December 14th, six days after the accident, complaining of back and knee pain. He saw a variety of specialists and attended several treatment and rehabilitation programs. He attended a pain clinic and sees a chiropractor on a weekly basis. He has been treated with a variety of medications.

Mr. Malik testified that his knee pain has resolved but his back pain has become progressively worse. In addition, several months ago he began to experience burning pain in his heels. Mr. Malik claims that his pain prevents him from returning to his job as a cab driver or engaging in any kind of work. He suffers from insomnia and depression and spends most of his time just lying around the house.

The Insurer submits that there is little organic evidence to support his ongoing complaints. It argues that surveillance evidence shows Mr. Malik working since this accident and that he has deliberately misled his medical examiners about his condition before and since this accident.

I have concluded that the medical evidence does not support disabilities of the severity and duration described by Mr. Malik. I find instead that he has exaggerated his symptoms and resisted well-founded suggestions that he return to work. I also find that he has worked covertly for his brother since this accident, despite his denials. My reasons follow.

EVIDENCE AND FINDINGS

1. Applicant's Evidence

Mr. Malik relied primarily on the evidence of Drs. Mayer, Lockhart, Jacobs, Kryspin, and Slyfield in support of his claim for income benefits. I am not persuaded that they make his case, either alone or in combination. I will discuss each doctor in turn.

a) Dr. H. Jacobs

Dr. H. Jacobs is a medical doctor who practices exclusively in pain management. He assessed Mr. Malik in October, 1997, at the request of Mr. Malik's counsel. Dr. Jacobs diagnosed 1) lumbar zygapophyseal joint pain; 2) "possible" disc damage; and 3) pain disorder associated with both "psychological factors and a general medical condition." Dr. Jacobs testified that Mr. Malik was disabled from driving a taxi or any other job commensurate with his background.

I have several reservations regarding Dr. Jacobs' opinions. First, Dr. Jacobs arrived at his conclusions partly on the basis of various "objective" tests which, in my view, paradoxically involve a great deal of subjective input. These tests³ assess anxiety, depression, pain and function. The results turn significantly on the patient's perceived disability and subjective impressions. Although Dr. Jacobs asserted that the tests have been "validated" and contain safeguards to detect deliberate exaggeration, he acknowledged that their accuracy also depends on truthful and consistent input. As I note below, Mr. Malik has not been truthful with his medical assessors. Therefore, to the extent any test results turn on Mr. Malik's honesty, they are questionable.

One further shortcoming of the tests is that they are not designed to reveal the cause of any positive findings. In this case, therefore, even if the test results are accurate, it is not clear that they reflect any difficulties that Mr. Malik has as a result of the accident.

In addition, Dr. Jacobs acknowledged that his diagnosis, after only one meeting with the applicant, was merely "differential"; for a conclusive diagnosis he needs to "conduct diagnostic blocks" in order to determine "the actual site of his pain." In the meanwhile, he can only point to "possible" disc damage or a "possible pain pathology" in the spine. Without more definitive findings, I find it difficult to give much weight to Dr. Jacobs' conclusion that Mr. Malik is disabled.

Finally, I find that Dr. Jacobs assumed an unduly partisan role in assessing Mr. Malik. Although he announces in his report that he will review the assessments of "both" Mr. Malik's doctors and those retained by the insurer, he conducts an extensive and highly critical review of the latter but leaves untouched any doctors who favour Mr. Malik's claim. And he dismissed the surveillance evidence⁴ as inconsequential, because in his view one must consider not merely the activities depicted but the length of time over which they are performed. Yet the surveillance evidence suggests that Mr. Malik worked for several hours at a time on consecutive days, despite denying such to various doctors.

Mr. Malik's brother owns a grocery and butcher shop, called "Al Azam Foods-Halal Meat & Chicken," located in the York Woods Shopping Centre. Mr. Malik testified that he has not worked there since this accident. He made similar representations to medical assessors: Dr. Welsh noted⁵ that "he denied ever having worked in any capacity since the accident"; Dr. Rosenbluth reported⁶ that, according to Mr. Malik, "he did not get involved in working in the store...he never helped out in the store."

The Insurer produced surveillance evidence that suggests otherwise. On June 6, 1996, Mr. Malik parked in the lot and entered the store at 9:40 a.m. (The store is normally open from approximately 9:00 a.m. to 9:00 p.m.) He later set up a sandwich board outside the store. Still later he stood for some time outside the door in a butcher's apron, leaning against the sandwich board. He left the store at 9:20 p.m. and locked the door behind him. On June 7, 1996, the following day, Mr. Malik's van was again seen in the parking lot outside the store. And on June 8, 1996, the third consecutive day, Mr. Malik arrived at the store at 9:40 a.m. Later that morning, he exited the store, cleaned off a sign just outside the store, and then re-entered the store. During the afternoon, Mr. Malik was observed packaging items and unpacking stock from a box. He remained inside the store and surveillance was discontinued at 6:00 p.m.

On January 10, 1997, Mr. Malik left the store at 2:30 p.m. He drove to a wholesale warehouse nearby where boxes were loaded into his vehicle. He returned to the store, unloaded the boxes, and entered the store. At one point he left the store, drove to another location, and then returned to the store. He finally left at approximately 9:05 p.m.

When questioned about this surveillance, Mr. Malik denied that he was working at the store and insisted that he was simply visiting his brother for "social" purposes. While there he might on occasion "help" his brother with the odd task, by packing up a few groceries or running an errand. He claimed that this was the extent of any assistance that he provided to the store, and that he was never paid for these services. He stated that he wore the butcher's apron only because he was cutting meat for himself, to take home, and not for any customers.

I find Mr. Malik's explanation of his activities at the store highly suspect. He spent many hours at the store on consecutive days and performed numerous tasks associated with operating the store. I find his activities of packing groceries, running errands, setting up and cleaning signs and locking up the store to be inconsistent with mere social visits. Neither his brother nor anyone else associated with the store corroborated his testimony.⁷ Mr. Malik may be working for his brother on a casual basis or may not be employed in any formal sense. Nevertheless, the only reasonable inference from all the evidence is that he has performed at least some work for his brother on more than one occasion since this accident.

As noted above, Dr. Jacobs dismissed this evidence as inconsequential. For this reason, and because of the other concerns I outlined above regarding Dr. Jacobs' assessment, I give little weight to his opinion.

b) Dr. J.A. Mayer

Dr. J.A. Mayer, a neurosurgeon, assessed Mr. Malik on December 29, 1993, at the request of Dr. Lockhat. In his consult note of January 4 he stated that Mr. Malik was "reported" to have sustained a "compression fracture of the second lumbar vertebra." But it is by no means clear that this resulted from the accident. Mr. Malik received an X-ray of his lumbar spine while at St. Michael's hospital on the day of the accident. The radiologist's report⁸ notes a "slight depression of anterior superior endplate of L2" and a fracture "of undetermined age" to L1. The handwritten notes which accompany the report state "? old L1 transverse spinal [fracture]...? new ? old L2... compression [fracture]" (my emphasis)

A follow-up X-ray report, dated August 15, 1994, refers to "an old healed fracture" (my emphasis) at L2. And on March 27, 1995, yet another X-ray of the lumbar spine makes no reference to a fracture, but notes "a slight concave depression...at L2 suggesting the results of an old Schmorl's node."⁹ Finally, an X-ray report dated may 28, 1997, notes a "compression deformity" at L2, believed to be "from old trauma...the lower lumbar spine is normal."

Overall, the X-ray reports cast considerable doubt on whether Mr. Malik sustained a fracture in this accident.¹⁰ Although the pre-accident records produced in this case are incomplete, Dr. Lockhat's notes confirm that Mr. Malik injured his back during a forklift accident at work, in December 1988. He was off work for several weeks and received Workers' Compensation Benefits. He returned to work on February 20, 1989, on "light duties." For several weeks thereafter he continued to complain to Dr. Lockhat of ongoing back problems.

Mr. Malik testified that he had no injuries to or difficulties with his back before this accident, and that he had never claimed Workers' Compensation Benefits. He made similar statements to other medical assessors.¹¹ When confronted with his pre-accident records, Mr. Malik initially stated that his predominant injury from the 1988 accident was to his eyes, even though Dr. Lockhat's records suggest otherwise. He later stated that he didn't believe his back was truly injured in this incident, and therefore didn't mention it to anyone, even when asked about any medical history relevant to his back.

Though certain details may have faded over the years, I find it peculiar that Mr. Malik denied any earlier injury to his back or that he had received benefits for some time. I find Mr. Malik's explanations implausible, and conclude that he attempted to minimize his pre-accident status because he thought it might prejudice his claim for insurance benefits.

In any case, even with his apparent belief that the accident caused a lumbar fracture, Dr. Mayer concluded in his initial consultation that Mr. Malik would recover from the accident and "in time he will be able to return to his occupation as a taxi driver." He repeated this positive prognosis when he reassessed¹² Mr. Malik on January 18, 1994. But in his final assessment on July 7, 1994, Dr. Mayer inexplicably reaches the opposite conclusion, stating (in a very brief report) that Mr. Malik "will have to change occupations." He does not indicate that he examined Mr. Malik or received any new evidence. He simply lists several of Mr. Malik's subjective complaints and then concludes, apparently on their strength alone, that Mr. Malik is therefore incapable of returning to his job.

The timing of this turnabout in Dr. Mayer's prognosis is significant. His revised opinion appears to be based largely on Mr. Malik's advice to him that he was still having back pain and had not improved despite two courses of physiotherapy. Other evidence confirms that by June of 1994 (one month before he last saw Dr. Mayer and only six months following the accident) Mr. Malik considered himself to be permanently disabled and unable to return to work. In his clinical note of June 16, 1994, Dr. Lockhat states:

[phone call] from Physiotherapist Gail - [patient] now able to lift 30-45 lbs and sitting for 45 minutes but [shows] symptom magnification on formal testing...he tells her that an MD told him he can never return to cab driving (I did not infer this to him for the record)...Gail feels he can [return to work] then.

[my emphasis]

In fact, there is no evidence that any doctor had yet suggested to Mr. Malik that he could not return to work. On the contrary, the physiotherapist, Gail Terashita, attempted to motivate Mr. Malik to return to taxi driving - to no avail, as seen in her report of June 21, 1994:

We have started return to work talks with [Mr. Malik]. He reports that he does not plan to return to taxi driving. He reports that he wants an "easy job". We have discussed at length with him that returning to his pre-accident activities will not harm him.

[my emphasis]

Given that Mr. Malik had apparently concluded by June of 1994 that he would never return to taxi driving, it is not surprising that only one month later, in his final meeting with Dr. Mayer, he presented himself as disabled. Although Dr. Mayer may have accepted Mr. Malik's complaints on face value, I find they are not supported by reliable evidence, and therefore give little weight to Dr. Mayer's opinion that Mr. Malik needs to find another occupation.

c) Dr. A. M. Lockhat

Dr. Lockhat has been Mr. Malik's family doctor since March 1988 and has seen him regularly since this accident. In his report of November 4, 1996, Dr. Lockhat opines that as a result of the accident, Mr. Malik sustained a fracture of the L2 lumbar spine. He notes that Mr. Malik is in constant pain and has developed a chronic pain syndrome and post-traumatic depression. Dr. Lockhat concludes that Mr. Malik will "not be able to return to his occupation as a taxi driver in the near future because of his continuing back pains."

I have several concerns regarding Dr. Lockhat's opinions. First, although Dr. Lockhat treated Mr. Malik for the back injury he sustained in 1988/89, he fails to mention that in any of his reports. Second, his conclusion of disability appears, at least in part, to turn on his belief that Mr. Malik sustained a lumbar fracture in this accident. I have already found that the evidence does not support such a finding. In any case, even if Mr. Malik did sustain a back fracture in the accident, Dr. Jacobs, who testified on behalf of Mr. Malik, stated that any fracture was a "red herring" because it was unlikely to have caused significant pain and would have healed shortly after the accident.¹³ Finally, Dr. Lockhat has not reviewed the surveillance videos or the investigator's reports, and is therefore missing some critical information.

d) Dr. D. Slyfield

Dr. Slyfield is a psychiatrist who has treated Mr. Malik on a regular basis since June, 1995. In his report of November 11, 1996, Dr. Slyfield stated that Mr. Malik "appears to be suffering from 'chronic pain'...he is unable to work and he...clearly suffers a substantial inability to perform essential tasks of his occupation (cab driving)."

Dr. Slyfield comments repeatedly¹⁴ in his report that Mr. Malik is "unable to work." He apparently was not aware of the surveillance evidence which, I have found, reveals that Mr. Malik has in fact worked since this accident. Moreover, his conclusions appear to be based solely on Mr. Malik's subjective complaints of pain and depression. Dr. Slyfield makes no reference to any objective physical evidence that may support disability, but merely states "... he apparently sustained a major injury in the upper lumbar region of his spine and he said that he was told that his upper two lumbar vertebrae were cracked" (my emphasis).

Dr. Slyfield also makes no reference to other factors which may have contributed to Mr. Malik's despondent state. Mr. Malik was referred to Dr. Slyfield by Dr. J. Cooper, a psychiatrist who assessed Mr. Malik at York Finch Hospital in January, 1995. He arranged for psychological testing, which "confirmed" that Mr. Malik was experiencing a "grief reaction" over the recent death of his mother. Dr. Cooper also noted that while Mr. Malik's depression "seems" to be related to the motor vehicle accident, "there is a lack of vocational or education perspective and ...this may be one of the reasons for feeling hopeless." Dr. Cooper noted that Mr. Malik "is not working and does not feel much motivation."

Dr. Slyfield's conclusions are also countered by Dr. Rosenbluth, a psychiatrist who assessed Mr. Malik on behalf of Gan. Dr. Rosenbluth reported that "Mr. Malik did not feel that there were any emotional problems which were preventing him from working...his emotional problems are 'only because of my wife...maybe sitting at home daily is a problem." In his conclusion, Dr. Rosenbluth noted:

Mr. Malik gave somewhat inconsistent reports about his emotional state during the interview. At one point, he described feeling pervasively depressed and little motivation to do anything. At other points, he indicated that he was motivated to return to work and would do so, if a job was available... he did not feel his emotional state was ...restricting him in any manner...[and] did not feel that he was suffering from significant psychiatric symptoms.

...there is no indication of a psychiatric syndrome attributable to the motor vehicle accident. There was no evidence that Mr. Malik is prevented from attending to his normal activities of daily living or returning to work on the basis of psychiatric symptoms.

[my emphasis]

e) Dr. J. Kryspin

Dr. Kryspin is a physiatrist who assessed Mr. Malik at the request of Mr. Malik's former counsel. After initially assessing Mr. Malik in February, 1997, Dr. Kryspin recommended Mr. Malik for therapy at his clinic twice a week. Mr. Malik has attended the clinic approx 50 times since February, 1997. He testified that Dr. Kryspin has administered "50-60" needles in his back, and that while his back pain has improved, a few months ago he began to experience severe pain in his heels. According to Mr. Malik, Dr. Kryspin has advised him that the needles caused the pain to move to his heels, and he should now proceed to have needles administered to his heels.

In his report of April 7, 1997, Dr. Kryspin stated that "abnormal [test] results...confirm that as a consequence of the fracture he might have developed complex regional chronic pain syndrome." (my emphasis) He found Mr. Malik to be "fully disabled and unable to be involved in any significant substantially gainful occupation."

In my view, Dr. Kryspin's opinion rests on tenuous grounds. First, the history he obtained is dubious. Dr. Kryspin notes that Mr. Malik sustained a "complicated injury with loss of consciousness and fracture of lumbar spine." But there is no reliable evidence¹⁵ whatsoever that Mr. Malik lost consciousness following this accident. And I have already found that the X-ray reports do not establish that Mr. Malik fractured his spine in this accident.

Second, Dr. Kryspin diagnosed chronic pain on the basis of allegedly "abnormal test results." But Dr. Kryspin conducted only four tests, two of which produced normal or insignificant findings.¹⁶Of the other two, a bone scan revealed only "nonspecific changes [that] may be related to trauma, arthritis or sympathetic dystrophy." And a thermography revealed temperature differences of two to three degrees between the left and right side of the back. The overall conclusion of the test report is of "some nonspecific changes...should sympathetic dystrophy be considered, then such changes are consistent with this diagnosis."

Finally, although Dr. Kryspin viewed the surveillance films, I found his interpretation of them peculiar. He completely ignored any suggestion in the videos that Mr. Malik was working. Moreover, he stated that Mr. Malik walked with a "mild limp" and his back was "slightly contracted to one side" in the video taken in January 1997. I saw no such impediments, and in fact noted that in the same video Mr. Malik was seen jogging several yards, with no apparent difficulty. I also find it significant that only one month following this video, when Dr. Kryspin first examined Mr. Malik, he found that he walked "in upright position [and] his gait [was] normal." Nor did any other medical assessor note abnormal gait at any point.

Because of these reservations about Dr. Kryspin's findings, I attach little significance to his opinion that Mr. Malik is disabled.

2. Insurer's Evidence

Gan produced evidence from several medical doctors that refutes Mr. Malik's claim of disability. Dr. Shiong, an orthopaedic surgeon, assessed Mr. Malik in April 1994. He reported that although Mr. Malik was still experiencing some genuine pain from the accident, with an active program of physiotherapy he "should be able to return to work within 3-4 months." Dr. Shiong suggested that Mr. Malik should initially return to work on a part-time basis, and then gradually increase his schedule, with the expectation that after approximately two months he could work full time.

Despite this advice, Mr. Malik made no attempt to return to work.¹⁷ This is particularly troubling given that his employment was likely flexible enough to allow a gradual return to full time work (Mr. Malik testified that three of his brothers owned or had interests in the cabs he drove before this accident.) Gan nonetheless allowed ten months to pass following Dr. Shiong's recommendations and obtained an updated opinion before it terminated benefits; on March 1, 1995, Dr. Liao, a physiatrist retained by Gan, reported that "there is no objective evidence of any medical condition restricting this patient from performing any work activity that he wishes." Dr. Liao noted that Mr. Malik complained that he was unable to perform "the lightest of chores," and that he was "uncomfortable" even carrying a bag of milk, but that he "demonstrated pain behaviour with magnification syndrome."

Dr. Peter Welsh is an orthopaedic specialist who examined Mr. Malik in March 1997, at Gan's request. He found that Mr. Malik resisted examination and tried to mislead him¹⁸ regarding his limitations. In his report of March 14, 1997, Dr. Welsh concluded that Mr. Malik could return to cab driving "should he want to," stating:

...there is such gross inconsistency in his presentation...with wilful inhibition demonstrated and then on surveillance obviously unrestricted activity that one is lead to the conclusion that Mr Malik's claims to continuing disability are spurious.

CONCLUSION:

I accept that Mr. Malik sustained some injury to his back and legs in this accident. However, on the bulk of the evidence before me, I find that his injuries had healed by the time Gan terminated his weekly income benefits. There was no objective evidence of a disabling physical or psychological condition that prevented Mr. Malik from returning to his job as a cab driver in March, 1995. To the extent that Mr. Malik's case then turns on his subjective complaints, I find he was not a reliable historian or witness. Mr. Malik denied a pre-accident related injury of some significance; he misled the Insurer and his medical assessors about working after the accident; and several medical practitioners found that he exaggerated his injuries.

I have therefore concluded that Mr. Malik is not entitled to any income benefits beyond the termination date of March 2, 1995.

EXPENSES:

Although Mr. Malik was unsuccessful in his claim for additional benefits, this case contained some divergence of opinion among various medical experts. On the other hand, I did not find Mr. Malik to be a credible witness. He misled the Insurer and this tribunal regarding his activities since this accident. And although several medical assessors supported his claim, I have found that their opinions were, at least to some extent, based upon unreliable reporting by Mr. Malik. In the final result, his claim had little merit.

In these circumstances, I find that Mr. Malik is entitled to only one third of his expenses.

Order:

1. Mr. Malik is not entitled to weekly income benefits for any period between March 2, 1995 and December 8, 1996.

2. Mr. Malik is not entitled to weekly income benefits for any period beyond December 8, 1996.

3. Mr. Malik is not entitled to a special award.

4. Mr. Malik is entitled to one third of his expenses.

Deena Baltman

Arbitrator

Date

Appendix A

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on November 3, 4 & 5, 1997, before me, Deena Baltman, Arbitrator.

Present at the Hearing:

Applicant:

Abdul Malik

Mr. Malik's

Kevin Wolf

Representative:

Barrister and Solicitor

GAN Canada's

Ralph D'Angelo

Representative:

Barrister and Solicitor

GAN Canada's

Dwight Robinson

Officer:

Witnesses:

Abdul Malik

Dr. Howard Jacobs

Fouqia Malik

Shannon Turiff, investigator

Exhibits:

Exhibit 1

Applicant's Brief

Exhibit 2

Insurer's Brief

Exhibit 3

Medical Expenses list

Exhibit 4

curriculum vitae of Dr. H. Jacobs

Exhibit 5

Video of June, 1996

Exhibit 6

Video of January, 1997

Exhibit 7

curriculum vitae of Shannon Turiff, investigator

Exhibit 8

Shannon Turiff's surveillance notes

Exhibit 9

St. Michael's hospital records

Exhibit 10

Dr. Lockhat's clinical notes and records

Exhibit 11

curriculum vitae of Dr. Jan Kryspin

The proceedings were recorded and an Omnicom interpreter in Urdu was present.

Footnotes

1. 1At the agreed upon minimum rate of $185.60
2. 2According to section 12 of 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 Regulation 672.
3. 3Dr. Jacobs administered three "objective" tests: the Hospital Anxiety and Depression Scale; the COOP/WONKA test; and the Visual Analogue Scale.
4. 4Although Dr. Jacobs had not seen the surveillance videos, he had reviewed the detailed narrative reports prepared by the investigator (Exhibit 2, Tabs 18 & 19).
5. 5Report of March 14, 1997, Exhibit 1, Tab 22
6. 6Report dated March 14, 1997, Exhibit 1, Tab 23
7. 7Although I heard no evidence on this point, Mr. Wolf indicated in his submissions that Mr. Malik's brother was in Pakistan during the hearing.
8. 8Exhibit 9
9. 9Dr. Jacobs testified that a Schmorl's node is a benign congenital defect.
10. 10Dr. Welsh expressed similar doubts in his report of March 14, 1997, noting that "some questioning of the age of the fracture leads one to speculate that this may not in fact necessarily be a traumatic lesion at all. This is further substantiated by Mr. Malik himself who indicated that he did not in the beginning have significant problem with his back, it was his legs that were the major problem."
11. 11Drs. Chow and Rosenbluth
12. 12Although Dr. Mayer reviewed the X-ray films during this visit, it is not clear whether he ever saw the radiologist's report that questions the age of the fracture.
13. 13Dr. Welsh agreed, saying (in his report of March 14, 1997) that although he found no evidence of a fracture resulting from this accident, "in any event such fracture is innocuous, insignificant and invariably heals without ongoing legacy or problem."
14. 14On page 2: "He was unable to work after his injury because of continuous pain and depression." and "He worried about his future...as he was unable to work." And on page 3: "...he was unable to work...he did not see how he would be able to live." and "He is unable to work and he is on social assistance."
15. 15Neither the ambulance call report nor the emergency record from St. Michael's hospital refer to any loss of consciousness. Nor did Dr. Lockhat note loss of consciousness.
16. 16A bone density test of the lumbar spine showed no excessive bone loss. An impedance plethysmography test (which records variations in blood supply) showed borderline volume changes on the right side and normal results on the left.
17. 17Although Mr. Malik maintained that he would try a "light job" if one were available, he acknowledged to Dr. Rosenbluth that he has never applied for one.(Exhibit 1, Tab 23, p.5)
18. 18Dr. Welsh noted that Mr. Malik actively resisted spine movements, but "this was clearly a spurious demonstration for when sitting on the couch he could do so... a definite endeavour to mislead the observer." And later he observed that when Mr. Malik left the office he walked stiffly, however "unknown to him he was observed as the elevator came and he just walked freely and naturally into the elevator."