Neutral Citation: 1997 ONICDRG 85

OIC A96-001014

ONTARIO INSURANCE COMMISSION

BETWEEN:

J.B.

Applicant

and

ST. PAUL FIRE & MARINE INSURANCE COMPANY

Insurer

DECISION

Issues:

At the time of his car accident on October 12, 1995, J.B. was 48 years old, and living with his wife and two children in Mississauga. He had recently returned from a three year stay in Lebanon and resumed his former occupation as a limousine driver.

J.B. suffered a variety of soft tissue injuries in the accident, which he alleges prevented him from returning to work until December 12, 1996. However, St. Paul paid him income benefits only until February 28, 1996. J.B. wishes to recover income benefits for the period between February 29, 1996 and December 12, 1996. In order to recover such benefits, he must show that he was substantially unable to perform the essential tasks of his employment as a limousine driver.

J.B. also claims that his penile prosthesis was damaged in the accident, leaving him impotent. St. Paul declined J.B.'s claim for a replacement prosthesis, on the basis that it was not damaged in the accident.

The issues in this hearing are:

1. Is J.B. entitled to weekly income benefits for any period between February 29, 1996 and December 12, 1996?¹

2. Is J.B. entitled to recover the cost of a penile prosthesis?

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

Result:

1. J.B. is not entitled to weekly income benefits for any period between February 29, 1996 and December 12, 1996.

2. J.B. is not entitled to recover the cost of a penile prosthesis. He shall repay $3,000.00 to St. Paul, being the sum advanced for the purchase of a new prosthesis.

Pre-Accident History:

J.B. grew up in Lebanon, where he completed high school and then worked at electrical installations. In 1986 J.B. married M.B., and in 1987 they moved to Canada. Over the following five years he worked sporadically driving limousines and taxis. In 1992 he returned to Lebanon. Until then, Dr. Talwalker was his family physician.

The evidence reveals that J.B. suffered from both vocational and physical problems before this accident. In cross-examination, J.B. acknowledged that he had been in several car accidents between 1987 and 1992. Eventually his drivers license was suspended because he had accumulated numerous demerit points and unpaid fines. Without his license, J.B. was unable to earn a living driving a limousine. He admitted that he moved back to Lebanon in 1992 because he was not able to work in Canada while his license was under suspension. He returned to Canada in the summer of 1995, shortly before his license was due to be restored.

During his early years in Canada, J.B. was also complaining about persistent right shoulder pain. In September, 1990, Dr. Talwalker referred him to Dr. Sennik, an orthopaedic surgeon, who recommended an arthrotomy of his shoulder joint in order to remove calcific deposits. J.B. rejected surgery and instead opted for cortisone injections. However, they proved unhelpful, and in February 1991 J.B. returned to Dr. Sennik because of "persistent pain and increasing discomfort."² Dr. Sennik again advised that J.B. required surgery, which J.B. continued to resist.

In April 1991 J.B. returned to Dr. Sennik because of a recent car accident in which he injured his neck and shoulder. Dr. Sennik noted spasm, severe pain, and dramatically reduced range of motion, and concluded that J.B. sustained "a severe soft tissue injury."

In August, 1991, Dr. Talwalker referred J.B. to Dr. Simmonds, an orthopaedic surgeon, who noted "a long history of pain in his right shoulder...he is right-handed." J.B. saw Dr. Simmonds again in April 1992 because of ongoing shoulder pain, whereupon Dr. Simmonds suggested that he see Dr. Ogilvie-Harris for a possible arthroscopy. I heard no evidence as to whether J.B. pursued that suggestion. He testified that although he "sometimes" had shoulder pain while driving, it had improved considerably by 1992. However, Dr. Talwalker's clinical note of February 19, 1992, suggests the opposite:

...wants me to fill welfare form for being unfit to work because of shoulder pain. Has been referred to Dr. Simmonds...he did not see him [ineligible] as advised, did not have [treatment] as advised by Dr. Sennick either...I cannot fill his welfare form if he doesn't want to see and have assessment by specialist as suggested...

In a later visit in April 1992, Dr. Talwalker noted "patient unreliable. To have Dr. Simmonds fill in form for welfare [since] he cannot work due to pain in right shoulder. Apparently Dr. Simmonds has agreed to do so."

Eventually J.B. did go on welfare, although he refused to provide those records to insurer's counsel before or during this hearing. J.B. also acknowledged that during his last twelve months in Canada before returning to Lebanon, he consulted a physician on 47 different occasions. I received no details regarding the problems that gave rise to these visits.

J.B. remained in Lebanon until 1995, when he returned to Canada with his wife and two children, then aged 7 and 5. On September 29, 1995 he resumed work as a limousine driver and was on the job only 12 days when he was involved in this accident.

The Accident and its Aftermath:

On October 12, 1995, J.B. was driving his limousine to the airport when he was struck from behind on the Queen Elizabeth Highway. The police report estimates that the other driver was travelling at approximately 60 k/p/h. J.B. was wearing a seat belt. Although the impact threw him backward and forward, he does not recall his body hitting any part of the inside of the car. He initially thought he was unharmed but later attended a hospital because of headaches and neck and back pain. He was x-rayed and discharged, whereupon he attended at the office Dr. Abdelshaheed, a family physician whom J.B. had not consulted before the accident. Dr. Abdelshaheed prescribed Voltaren and Tylenol #3.

Dr. Abdelshaheed's report of December 4, 1995³ stated that J.B. was suffering from headaches, back pain, anxiety with mood swings, loss of libido and malfunction of a penile implant. He recommended physiotherapy and a comprehensive rehabilitation program.

The insurer then retained Susan Pettle, a rehabilitation specialist, who referred J.B. for an assessment with Dr. Walters, a specialist in family and occupational medicine. In his report of December 16, 1995, Dr. Walters concluded that J.B. was not ready to return to work, but required an active physiotherapy program. He also suggested that J.B. undergo a Functional Abilities Evaluation (FAE) after four weeks of therapy, in order to determine his fitness to return to work as a limousine driver. Ms. Pettle then arranged for J.B. to attend at a physiotherapy clinic near his home. The clinic recommended a daily physiotherapy program of 8 to 12 weeks.

The FAE was completed on January 17, 1996, and concluded that J.B. had "performed poorly...was impatient and uncooperative...the patient demonstrated far better ROM during the non formal measurement times of the FAE. This and numerous other inconsistencies during the testing suggests that the results from this assessment are not indicative of the patient's actual maximum abilities."⁴

After reviewing the FAE, Dr. Walters concluded that J.B. was "not being consistent and...honest in representing his symptomatology and his physical abilities," and saw no reason why he could not return to his work as a limousine driver. In a reassessment in February of 1996, Dr. Walters noted that J.B. was continuing to complain of back and neck pain, dizziness and sexual problems. Dr. Walters stated that J.B. exaggerated his symptoms and deliberately limited his range of motion. He found "no positive neurological findings to substantiate any bony or neurological illness...further physical therapy will likely not be beneficial for this gentleman. He is already driving and I would suggest that he return to his pre-accident occupation as a limousine driver..."

On the basis of Dr. Walters' conclusions, St. Paul terminated weekly income benefits on February 28, 1996. Dr. Abdelshaheed, however, continued to note ongoing complaints of back pain, dizziness, anxiety and sexual dysfunction. Consequently, he referred J.B. to Dr. Temple (neurologist), Dr. Sennik (orthopaedic surgeon), and Dr. Awad (psychiatrist), none of whom found any objective basis for his complaints or inability to work. Dr. Sennik noted that although J.B. complained of shoulder pain and "wouldn't let me move his shoulder beyond a certain degree...," when Dr. Sennik saw him dressing and undressing "he had absolutely no problem with his shoulder movements at all." Dr. Sennik concluded that J.B. "should be able to return to full activities."

Findings:

a) as to IRB's

J.B. claims income replacement benefits from February 28, 1996 until his return to work on December 12, 1996. In order to recover such benefits, he must show that he was substantially unable to perform the essential tasks of his employment as a limousine driver. I find that J.B. has not met that onus.

I received virtually no evidence from the applicant regarding his tasks as a limousine driver, and therefore rely on the job site analysis report prepared by St. Paul's. This states that J.B.'s job duties include communicating with the dispatcher, assisting customers with baggage, delivering customers to their destination, maintaining his vehicle in a clean condition, and some paperwork. J.B. maintains that the was unable to perform those tasks primarily because of back pain, dizziness and anxiety. However, the only medical evidence in support of J.B.'s claim came from Dr. Abdelshaheed.

Dr. Abdelshaheed testified that he accepted J.B.'s assertion that he was not able to return to work before December, 1996. He noted that although J.B.'s physical injuries resolved fairly soon after the accident, his complaints of anxiety and dizziness persisted. Dr. Abdelshaheed agreed that these latter complaints were primarily subjective but stated that he believed them to be genuine. He explained that J.B. is an anxious, vulnerable person who simply reacted to this accident more severely than the average person.

I have several reservations about Dr. Abdelshaheed's opinion. He testified that the major factors contributing to J.B.'s absence from work were back pain, dizziness and anxiety. Yet in cross-examination he admitted that none of these complaints were well-founded: the back pain resolved within a few months of the accident; Dr. Temple (the neurologist to whom Dr. Abdelshaheed referred J.B.) found no organic explanation for his dizziness, and neither Doctor Temple nor Abdelshaheed considered it serious enough to alert the Ministry of Transportation to suspend J.B.'s driving licence; and Dr. Abdelshaheed admitted he could not say whether J.B.'s anxiety was accident related because he had never seen him pre-accident, and therefore had no basis for comparison. On that note, it is apparent that Dr. Abdelshaheed knew very little about J.B.'s pre-accident condition; Dr. Abdelshaheed did not obtain Dr. Talwalker's clinical and records, nor was he aware that Dr. Sennik had recommended surgery, which J.B. had declined. Moreover, J.B. did not disclose his previous WCB claims, or his sporadic work history. Dr. Abdelshaheed agreed that J.B. "has a tendency to exaggerate" and that after a few months post-accident, his major complaints were related to "anxiety and neurosis", especially in regard to his sexual function, which was "high on his mind." For reasons which I outline below, I find the sexual complaints were unrelated to the accident. Consequently, to the extent J.B.’s complaints of anxiety relate to his sexual function, they do not support his claim for accident benefits.

Dr. Abdelshaheed also testified that J.B. requested him to fill out a medical form in support of J.B.'s application for welfare.⁵ In a form dated April 29, 1996, in response to the question of whether J.B. could return to his previous occupation, Dr. Abdelshaheed stated that J.B. could return to work in a few weeks, provided he worked part-time initially. This is inconsistent with J.B.'s assertion that he was not medically fit to return to work on any basis until December of 1996. Nor does it explain why J.B. was able to drive to and from Kitchener on a holiday in December, 1995 or drive some distance on another holiday in January of 1996.⁶

For all these reasons, I give little weight to Dr. Abdelshaheed’s opinion, and find it does not support J.B.'s claim for income benefits.

Dr. Abdelshaheed’s conclusions were also countered by evidence submitted by the Insurer. Dr. Walters testified that by February, 1996, J.B. was able to perform his job safely. He noted that J.B. had not disclosed his pre-accident history of neck and shoulder pain and believed that J.B. was far more concerned with his sexual function than with any injuries sustained in this accident. Dr. K.B. Walsh, a psychiatrist who examined J.B. in June 1996 on behalf of St. Paul, concluded that although J.B. "has symptoms of anxiety and depression, I do not believe that they are directly attributable to his October 1995 MVA...I cannot see why his emotional difficulties would prevent him from working as a limousine driver."⁷

The evidence does not satisfy me that J.B. was substantially disabled from working as a limousine driver for any period between February 29, 1996 and December 12, 1996, and I therefore reject his claim for further income replacement benefits.

b) as to the penile implant

J.B. first obtained the prosthesis in 1989, when he underwent surgery for impotence. Dr. R.C.T. Chen, a urologist, inserted an inflatable penile device. J.B. alleges that this accident caused his penile prosthesis to malfunction, and he is therefore entitled to a replacement. In order to recover this benefit, J.B. must establish that it is a reasonable expense resulting from the accident. His counsel conceded that there was little evidence to support this claim. I agree, for several reasons.

Although J.B. saw Dr. Abdelshaheed six times in the first month following the accident, he did not complain of pain or discomfort in his groin area until November 8, 1995. J.B. explained that because of his other injuries he did not attempt sexual intercourse until several weeks after the accident, and therefore could not have known earlier that his implant was malfunctioning. However, J.B. had complained that his prosthesis was defective long before this accident.

In May 1991, J.B. told Dr. Talwalker, his G.P. at the time, that he was suffering from "impotence." Dr. Talwalker noted that J.B. "wants another opinion...not happy with outcome of penile prosthesis." In February 1992 Dr. Talwalker noted: "Impotence - wants penile prosthesis removed [since] does not function. This is again a longstanding problem and he needs to see Dr. R.C.T. Chen for it." (emphasis added) Dr. Talwalker's note of March 1992 states that J.B. was "not happy with penile prosthesis, not able to get erection and gets pain in penis [ineligible] wants prosthesis removed. Going to Lebanon April 6 wants surgery before then."

J.B.'s wife, M.B., also testified. She conceded that her husband complained "a little bit" about the implant before the accident because it wasn't "like the natural process," but insisted that it was not a significant problem. As evidence that the implant was working properly before the accident, she points out that she became pregnant in 1993, while they were in Lebanon. By contrast, M.B. stated that after the accident her husband couldn't get an erection at all, and that they have not had sexual intercourse since the accident.

J.B. admitted that he was dissatisfied with the implant before this accident because although he could achieve an erection, he had no desire for sex and experienced little sensation in his penis. He and M.B. had sexual relations approximately twice a month before the accident. He insisted, however, that his sex life was adequate before, and blames the accident for the complete lack of sexual relations since.

Although it is clear that the implant is no longer working, I am not persuaded that it broke because of the accident. J.B. was wearing a seat belt at the point of impact, and there is no evidence that his body struck any part of the inside of the car. M.B.'s evidence that J.B. had only minor complaints about the implant before the accident is inconsistent with Dr. Talwalker's clinical notes. Finally, I note that although St. Paul gave J.B. $3,000.00 in January 1997 to buy a prosthesis, under the "pay pending dispute" provision of the Schedule, J.B. has not obtained a replacement. He claims that is because the operation costs $3,750 and he cannot afford to fund the difference of $750.00. This contradicts J.B.'s advice to Dr. Barkin that he is "very anxious to have this prosthesis replaced and ...would even pay for it whether [St. Paul does] or not."⁸

I find that J.B. is disinclined to replace the prosthesis because he was never happy with its performance, even before this accident. Dr. Barkin advised J.B. in August 1996 that "a new implant would not give him feeling, it would only give him a hard erection."⁹ In J.B.'s own words, however, this is not satisfactory: "I want my feelings to be back, not to just have my prosthesis."¹⁰

I am not persuaded that this accident caused J.B.’s prosthesis to malfunction, and therefore conclude that he is not entitled to recover the cost of a replacement. Counsel agreed that if I disallowed this claim, J.B. should repay St. Paul the $3,000.00 it advanced for the purchase of a new prosthesis.

Order:

1. J.B. is not entitled to weekly income benefits for any period between February 29, 1996 and December 12, 1996.

2. J.B. is not entitled to recover the cost of a penile prosthesis. He shall repay $3,000.00 to St. Paul, being the sum advanced for the purchase of a new prosthesis.

3. J.B. is entitled to his expenses of the arbitration.

May 28, 1997

Deena Baltman

Arbitrator

Date

SCHEDULE "A"

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on March 26 & 27, 1997, before me, Deena Baltman, Arbitrator.

Present at the Hearing:

Arbitrator:

Deena Baltman

Applicant:

J.B.

J.B.'s

Joseph J. Faust

Representative:

Barrister and Solicitor

St. Paul's

Karen L. Fellowes

Representative:

Barrister and Solicitor

St. Paul's

Michelle Carignan

Officer:

Witnesses:

J.B., the Applicant

Dr. Abdelshaheed

M.B., the Applicant's wife

Dr. Lawrence Todd Walters

Susan Pettle

Exhibits:

Exhibit 1

Applicant's Medical Brief (26 tabs)

Exhibit 2

OHIP Summary

Exhibit 3

Medical Report of Dr. Abdelshaheed of March 1, 1997

Exhibit 4

Medical Report of Dr. S. Haidamous of March 1997

Exhibit 5

Dr. Walter's Report of January 24, 1996

Footnotes

1. 1Although the parties initially disputed the amount of the weekly benefit, they have since agreed on the figure of $378.00 per week.
2. 2Exhibit 1, Tab 24
3. 3Contained in the joint Medical Brief, Exhibit 1. I advised counsel that only those portions of the brief that were referred to in evidence and in submissions would be considered evidence.
4. 4Exhibit 1, Tab 7, p.5
5. 5Despite requests from the Insurer, the Applicant did not obtain a copy of his welfare file for the hearing. Dr. Abdelshaheed's evidence regarding the welfare forms was based on file notes which were not made exhibits.
6. 6J.B. attempted to recover the mileage for those trips from St. Paul.
7. 7Exhibit 1, Tab 13, p. 6
8. 8Exhibit 1, Tab 15, p.17
9. 9Exhibit 1, Tab 16
10. 10J.B.'s testimony at the hearing.