Mohamed Ali v. Liberty Mutual Insurance Company, 1998 ONICDRG 110

Neutral Citation: 1998 ONICDRG 110

OIC A96-001180

ONTARIO INSURANCE COMMISSION

BETWEEN:

MOHAMED ALI

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Mohamed Ali, was injured in a motor vehicle accident on April 24, 1994. He applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ Liberty Mutual terminated weekly income replacement benefits on September 29, 1995. The parties were unable to resolve their disputes through mediation, and Mr. Ali applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act").

The issues in this hearing are:

1. Is Mr. Ali entitled to receive weekly income replacement benefits of $216.40 per week, from September 30, 1995 and ongoing, pursuant to section 7 of the Schedule?

Mr. Ali also claims interest on any amounts owing and his expenses incurred in the arbitration proceeding.

Result:

1. Mr. Ali is entitled to receive weekly income replacement benefits of $216.40 per week from September 30, 1995 to March 5, 1996, pursuant to section 7 of the Schedule, together with appropriate interest pursuant to section 68 of the Schedule.

2. Mr. Ali is entitled to his reasonable expenses of the arbitration proceeding.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on December 9 and 11, 1997.

Present at the Hearing:

Applicant: Mohamed Ali

Mr. Ali's Representative: David F. Longley Barrister and Solicitor

Liberty Mutual's Representative: Pamela Brownlee Barrister and Solicitor

Witnesses: Mr. Mohamed Ali Dr. Rajka Soric

Exhibits: The parties filed five exhibits, one consisting of a document brief.

Evidence and Findings:

Background

On April 24, 1994, Mr. Ali was involved in a multi-vehicle collision near the intersection of Highways 401 and 427 in Toronto. He was not, however, injured in that accident. After the accident, he got out of his car and while looking under his hood, was struck on his left side by a tow-truck that had come to the scene. Mr. Ali suffered injuries to his left arm and elbow, and to his head, neck and back. He was taken by ambulance to the Etobicoke General Hospital where he was treated and released. He saw his family physician, Dr. Arif Chaudhri, two days later. On April 29, 1994, Dr. Chaudhri diagnosed a left elbow and chest wall contusion, neck and low back strain, concussion and a laceration to the left temple.

Mr. Ali testified that he lost consciousness after being hit by the tow-truck, and did not regain consciousness until he arrived at the hospital. He had also reported this to a number of the medical and rehabilitation specialists he saw. However, both the ambulance and emergency records indicate that Mr. Ali did not suffer a loss of consciousness. While Dr. Chaudhri diagnosed a concussion, his earliest records (April 26, 1994) contain the notation "LOC ?" and he later reported that it was unclear whether Mr. Ali lost consciousness at the time of the accident. Based on the records most contemporaneous with the accident, particularly those of the ambulance attendant who examined Mr. Ali and took him to the hospital, I find on a balance of probabilities that Mr. Ali did not suffer a loss of consciousness following the accident.

Mr. Ali visited his family physician numerous times over the next two years regarding his accident-related injuries. He also underwent varying periods of physiotherapy and other forms of rehabilitation. His current complaints are left elbow pain, neck and back pain, headaches, dizziness and sleep difficulties. Mr. Ali has also, at times, complained of memory loss and concentration problems. He testified that his main problem is left elbow pain, as well as back pain during prolonged sitting. In May 1997, Dr. Chaudhri diagnosed "chronic pain syndrome with some overtones of depressive symptomatology."

Mr. Ali underwent various tests and x-rays. Bone scans of his left elbow showed degenerative changes and hyperemia (excessive presence of blood). Dr. Rajka Soric, a physiatrist who saw Mr. Ali at the request of the Insurer, testified that the problem with Mr. Ali's elbow was more likely related to the motor vehicle accident than to any underlying abnormality. I accept this opinion, especially as Mr. Ali did not have any health problems prior to the accident.

Prior to the accident, Mr. Ali was a gas station attendant. He worked Mondays to Fridays, approximately 40 hours a week. He worked both day and night shifts. The gas station was divided into two sections, a full-service and a self-service side. Mr. Ali worked in a booth on the self-service side. He operated a cash register, stocked the shelves with snack food and supplies, unloaded deliveries such as cases of soft drinks, helped customers when necessary in operating the gas pumps, shovelled snow in the winter, and occasionally pumped gas, changed oil and cleaned windshields on the full-service side of the station. Mr. Ali also occasionally had to lift heavy bags of salt (for ice and snow removal) and pails of absorbal (a substance used to clean up gas spills). In general, his job involved prolonged standing, as well as some sitting, walking, crouching, reaching and lifting. I find these to be the essential tasks of his pre-accident employment.

Mr. Ali submits that since being hit by the tow-truck, he has been substantially disabled from performing the essential tasks of his employment as a gas station attendant, pursuant to section 7(1) of the Schedule. Mr. Ali maintains that the pain in his left arm is the main impediment to his returning to work, although he also notes difficulties with headaches, back pain and dizziness. The Insurer maintains that Mr. Ali was able to return to his pre-accident employment as of September 30, 1995.

Medical Assessments

The Insurer referred Mr. Ali to a number of specialists. In October 1994, Dr. Peter Parker, a physiatrist, reported that "no significant pathology could be identified in any of the areas of [Mr. Ali's] complaints...[and that] any residual problems is [sic] due to disuse and over protectiveness of the left arm." Dr. Parker also stated that Mr. Ali's complaints of dizziness, and neck and back pain, would not prevent him from performing his work as a gas station attendant. Dr. Parker suggested an active/functional rehabilitation programme of four weeks' duration. Dr. Parker felt that due to Mr. Ali's "perceived pain," his prognosis was poor, particularly with respect to his ability to lift and stock heavy objects at his job (such as cases of soft drinks).

A month later, Mr. Ali was seen by Dr. Leon Kadish, an orthopaedic surgeon. Dr. Kadish reported that due to a "significant emotional component to [Mr. Ali's] symptoms," an accurate assessment of his physical impairment was extremely difficult. Dr. Kadish found that Mr. Ali was not capable of being employed in any capacity "in his present state." Dr. Kadish recommended a psychological assessment to determine Mr. Ali's ultimate prognosis. He felt that Mr. Ali would require significant emotional treatment and support.

Mr. Ali saw Dr. Tracy Halpen, a psychologist, in January 1995. Dr. Halpen concluded that "from a psychological point of view, Mr. Ali-Hussein is not currently disabled, nor is he presenting as significantly distressed emotionally, although...there are mild symptoms of dysphoria [a state of unease or mental discomfort] secondary to his physical injuries. The possibility of malingering cannot be ruled out." Dr. Halpen disagreed with Dr. Kadish's view that there was a "significant emotional component," stating that she did not consider Mr. Ali's nightmares and mild depressive symptoms to be disabling. She stated that there was little evidence that Mr. Ali suffered from post-traumatic stress disorder. However, Dr. Halpen stated that Mr. Ali may not have been able to "express himself well enough in English to adequately portray his emotional state" and that the results of her assessment were therefore "limited and provisional." She also concluded that a brief trial of psychotherapy might be useful in encouraging Mr. Ali to increase his activity level and to reassure him that his symptoms were mild, because he was at risk of developing chronic pain syndrome. Dr. Halpen suggested that he be provided with "realistic vocational goals and pain management strategies and encouraged to return to work."

In June 1995, Dr. Chaudhri referred Mr. Ali to Dr. Ramona Domander, another psychologist at Dr. Halpen's clinic. Contrary to Dr. Halpen's findings, Dr. Domander found that Mr. Ali met the DSM-IV criteria for post-traumatic stress disorder of mild severity. She also stated that Mr. Ali presented with mild to moderate depression. Dr. Domander concluded that "at present and under the terms of Bill 164, Mr. Ali appears partially psychologically disabled with respect to being able to participate and enjoy his pre-accident activities of daily living, including work." Dr. Domander recommended, and in fact provided, a course of psychotherapy. The objectives of the psychotherapy were consistent with Dr. Halpen's recommendations, namely, to improve Mr. Ali's functioning by addressing his symptoms of pain, depression and anxiety. Dr. Domander concluded the psychotherapy in March 1996 when she noted improvement in Mr. Ali's emotional state and level of physical activity. While Mr. Ali requested further psychotherapy sessions, Dr. Domander's only suggestion for further treatment was a driver reintegration programme to address Mr. Ali's post-accident fears of driving. Dr. Domander noted that Mr. Ali "seemed agreeable to closing his treatment with [her] in this way."

In the interim, the Insurer had also referred Mr. Ali to Dr. Soric, a physiatrist, in August 1995. Dr. Soric reported that Mr. Ali had fully recovered from a "musculoskeletal point of view" and was able to resume his pre-accident activity as a gas station attendant. However, Dr. Soric stated that Mr. Ali's functional recovery depended on his "motivation and psychological status," and that "there may be psychological reasons...preventing [him] from returning to work." She noted Dr. Domander's June 1995 opinion concerning Mr. Ali's psychological state, and suggested that further psychological management might be in order. Despite this opinion, and despite Dr. Domander's ongoing treatment, the Insurer terminated benefits approximately six weeks after Dr. Soric issued her report. At the hearing, Dr. Soric confirmed the opinions expressed in her written evaluation, noting that her expertise was limited to assessing physical disability and did not extend to the psychological aspects of Mr. Ali's condition.

The Insurer had referred Mr. Ali to the Canadian Back Institute in the spring of 1995 for physical rehabilitation. However, Dr. Chaudhri had already referred Mr. Ali to Keele-Wilson Rehabilitation, and so, on Dr. Chaudhri's instructions, Mr. Ali did not attend at the Canadian Back Institute. Mr. Ali participated in other rehabilitation programmes in 1995 and 1996. Some of these were on the referral of Dr. A. Kachooie, a physiatrist to whom Dr. Chaudhri had referred Mr. Ali in the spring of 1996. Dr. Kachooie's reports note headaches, neck, low back and left leg pain. Significantly, Dr. Kachooie's notes do not refer at all to Mr. Ali's complaints of left arm pain.

In May 1997, Dr. Chaudhri reported that Mr. Ali continued to suffer from chronic pain syndrome with depressive symptomatology, and that vocational rehabilitation and further psychiatric assessment might be necessary. Dr. Chaudhri stated that Mr. Ali would still have difficulties performing his pre-accident job, including the activities of lifting, prolonged sitting and standing, carrying and twisting.

Finally, a medical-rehabilitation DAC assessment was completed in June 1997. Dr. Harold Becker, the DAC medical director and primary assessor, found that any restriction in Mr. Ali's neck and left elbow was "voluntary," and that the only additional treatment he would recommend would be a programme of stretching, "something [Mr. Ali] could do on his own." Michael Drinkwater, a physiotherapist, stated that Mr. Ali presented with "indications of chronic pain with possible non-organic factors." Similar to Dr. Becker, Mr. Drinkwater stated that the only additional treatment of benefit to Mr. Ali would be a simple home programme of arm exercises.

Dr. Douglas Salmon, the DAC psychologist, found significant inconsistencies in Mr. Ali's complaints and symptoms. Dr. Salmon stated that "significant symptom exaggeration is apparent, and one would certainly query at this time the strong influence of secondary gain in the maintenance of this man's disability." Dr. Salmon concluded that no psychological intervention was warranted given the absence of any psychological or cognitive impairment, and given that any subclinical depressive and anxiety features were not accident-related. Ms. Karey Carson, an occupational therapist, and Mr. David Morris, a kinesiologist, reported that Mr. Ali was restricted in bilateral lifting and carrying, crouching, forward reaching and prolonged standing. They recommended a home exercise programme and a gradual return to work beginning on a part-time basis.

Analysis

The Insurer terminated benefits in September 1995. Mr. Ali bears the onus of establishing, on a balance of probabilities, that from that time, his accident-related injuries have substantially disabled him from performing the essential tasks of his pre-accident employment.

With the exception of Dr. Kachooie not noting Mr. Ali's left elbow pain, Mr. Ali's complaints have remained relatively consistent since the accident. He also testified in a straightforward manner without significant inconsistencies. He has been variously diagnosed as suffering from post-traumatic stress disorder, depression, and chronic pain syndrome. Nonetheless, I find that Mr. Ali was only disabled until March 1996, when Dr. Domander completed her psychotherapy sessions.

None of the specialists who saw Mr. Ali stated that he was physically disabled from returning to his pre-accident employment. They found his functional recovery to be significantly hampered by emotional and/or psychological factors. The first two psychologists to examine Mr. Ali (Drs. Halpen and Domander) differed in their interpretation of Mr. Ali's symptoms. Dr. Halpen found them to be mild and not disabling, while Dr. Domander found them to be mild and partially disabling. However, like Dr. Domander, Dr. Halpen recommended a brief course of psychotherapy, as well as pain management counselling, noting that Mr. Ali's situation was sufficiently serious that he was at risk of developing chronic pain syndrome. Dr. Halpen also indicated that Mr. Ali's limited ability to communicate in English precluded a full and definitive assessment of his condition. Therefore, despite their apparent differences, I find that Drs. Halpen and Domander essentially agreed as to the severity of Mr. Ali's psychological disability. In any event, I find Dr. Domander's assessment more consistent with those physicians who did physical examinations of Mr. Ali, namely that he required significant psychological intervention to facilitate his return to the workplace.

Dr. Domander provided the required assessment and treatment until March 1996. While Mr. Ali's pattern of attendance at these sessions was not ideal, I am not satisfied that this was simply a matter of lack of interest or commitment on his part. Dr. Domander had to work with Mr. Ali in order to ensure that he participated in and completed the required treatment. I find that any problems with Mr. Ali's attendance were, in part, a function of the difficulties he was experiencing on an emotional/psychological level.

In her concluding report, Dr. Domander noted a number of therapeutic gains, including "further increase in social activity,...no further anxiety reported when riding as a passenger,...increased level of exercise; taking approximately 30 minute walks per day,...no relapse in the cessation of smoking,...continued attempts at maintaining improved nutrition,...no further use of or reported need for medication and...continued use of relaxation methods to reduce anxiety." Dr. Domander recommended a driver-reintegration programme as the only area in which Mr. Ali required additional assistance. In contrast to her original assessment, Dr. Domander did not indicate that Mr. Ali continued to be psychologically disabled from returning to work. In light of the fact that her only suggestion for further treatment was a driver-reintegration programme, I find that Dr. Domander felt that Mr. Ali was no longer incapable of performing his previous employment.

While Dr. Domander's initial assessment was that Mr. Ali was merely "partially disabled," the weight of medical opinion suggests that psychological treatment was critical to Mr. Ali's recovery. I do not find that Dr. Domander saw Mr. Ali as capable of performing the essential tasks of his pre-accident employment without adequate psychological support and intervention. Therefore, given the consensus that such treatment was important to Mr. Ali, and the compatibility of the views of Drs. Halpen and Domander regarding Mr. Ali's psychological condition, I find that Mr. Ali remained substantially disabled from performing his pre-accident work until the completion of his psychotherapy treatment.

Mr. Ali continued to see Dr. Chaudhri, as well as Dr. Kachooie, after this time. I find it significant that Dr. Kachooie's spring 1996 reports make no mention of Mr. Ali's elbow problems. According to Mr. Ali, these have been the main impediment to his returning to his pre-accident employment. Dr. Kachooie's main focus was Mr. Ali's back pain, and concluded that his symptoms were "consistent with discogenic back pain." Dr. Kachooie did not indicate whether this "discogenic" problem originated with the 1994 motor vehicle accident. Dr. Kachooie recommended physiotherapy, a conditioning exercise programme, steroid injections at a pain clinic and psychological assessment/intervention. However, there is no evidence as to whether these treatments occurred or, if they occurred, whether they were of benefit to Mr. Ali. In the second and last report available from Dr. Kachooie (June 1996), he concluded that Mr. Ali remained "limited and disabled at this point in time." However, Dr. Kachooie never identified the nature of Mr. Ali's pre-accident employment or why Mr. Ali's symptoms prevented him from returning to work. I, therefore, find Dr. Kachooie's evidence of little assistance in determining the nature and extent of Mr. Ali's disability.

In May 1997, Dr. Chaudhri prepared a detailed review of Mr. Ali's treatment, concluding that Mr. Ali continued to be disabled due to chronic pain syndrome and depression. However, Dr. Chaudhri made no reference to the opinions of Drs. Parker, Kadish, Halpen and Soric, all of whom questioned the nature and extent of Mr. Ali's disability. He did note Dr. Domander's treatment of Mr. Ali, but did not explain his diagnosis of chronic pain syndrome in relation to Dr. Domander's diagnosis of post-traumatic stress disorder. I find that, as a psychologist, Dr. Domander was more qualified than Dr. Chaudhri, a general physician, to assess the non-organic aspects of Mr. Ali's pain symptoms. In any event, Dr. Chaudhri only concluded that he "may need the opinion of a psychiatrist in the future to address the patient's depressive symptomatology" (emphasis added).

Dr. Chaudhri's assessment also stands in stark contrast to the medical-rehabilitation DAC completed in June 1997 which contained numerous comments about the voluntary and motivational aspects of Mr. Ali's restrictions and recovery, as well as the inconsistencies in his examinations. While the DAC only considered the need for additional treatment, I find it significant that its main recommendation was a simple home exercise programme. The occupational therapist and kinesiologist also recommended an immediate return to full-duties employment, albeit on a gradual, part-time basis. Mr. Ali submitted that this last piece of evidence supported his ongoing disability. However, in the context of the rest of the DAC assessment, as well as the findings of all of the other physicians, save Dr. Chaudhri, I do not find that the reference to gradual, part-time employment meant that Mr. Ali continued to be substantially disabled from performing the essential tasks of his pre-accident work. In any event, the kinesiologist and occupational therapist noted submaximal effort on tasks involving Mr. Ali's elbow (the area he claims to be the main impediment to his returning to work). They also found that Mr. Ali had significant lifting and carrying ability, and that his work could easily be modified to accommodate any of his residual limitations. I note as well that they found that Mr. Ali might have difficulty with prolonged standing; however, Mr. Ali testified that his back pain was only a concern with respect to prolonged sitting. Finally, none of the DAC specialists found Mr. Ali's complaints of headaches and dizziness to be disabling. Dr. Salmon, in fact, reported Mr. Ali as saying that his dizziness had resolved.

Therefore, I prefer the findings of the medical-rehabilitation DAC to those of Dr. Chaudhri as to the nature and extent of Mr. Ali's restrictions. In particular, I prefer the findings of the DAC psychologist who found that Mr. Ali significantly exaggerated his symptoms. I am not satisfied that the post-traumatic stress disorder diagnosed and treated by Dr. Domander resurfaced as the disabling chronic pain syndrome diagnosed by Dr. Chaudhri. I find that the psychological barriers previously identified no longer substantially disabled Mr. Ali from returning to work in March 1996 and that any residual restrictions were either self-imposed or could have been accommodated in the workplace.

Finally, I find it significant that Mr. Ali has made no attempt to return to work since the 1994 accident. This, in conjunction with the observations of Drs. Halpen and Salmon concerning malingering and secondary gain, as well as the numerous statements that Mr. Ali should be encouraged to return to work, suggest that any continuing work-impairments he suffered were self-generated and not accident-related.

Therefore, I find that as of March 5, 1996, when Dr. Domander's sessions ended, Mr. Ali was neither physically nor psychologically disabled from performing the essential tasks of his pre-accident employment.

Expenses:

I exercise my discretion under section 282(11) of the Act to award Mr. Ali his reasonable expenses of the arbitration proceeding. If the parties are unable to agree on the amount owing, they may apply for an assessment.

Order:

1. Mr. Ali is entitled to receive a weekly income replacement benefit at a rate of $216.40 per week from September 30, 1995 to March 5, 1996, pursuant to section 7 of the Schedule, together with appropriate interest, pursuant to section 68 of the Schedule.

2. Mr. Ali is entitled to his reasonable expenses of the arbitration proceeding.

Eban Bayefsky Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.