Neutral Citation: 1998 ONICDRG 112

OIC A97-000629

ONTARIO INSURANCE COMMISSION

BETWEEN:

JOSIP RUDAR

Applicant

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Josip Rudar, a 43-year-old self-employed wallpaper hanger, was injured in a motor vehicle accident on November 18, 1994 when the car he was driving was hit on the passenger side by a car leaving a parking lot. He received statutory accident benefits from Lombard General Insurance Company of Canada ("Lombard"), payable under the Schedule¹. Lombard terminated weekly income replacement benefits on April 6, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Rudar 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. Rudar entitled to income replacement benefits on the basis that he suffers a substantial inability to perform the essential tasks of his employment as a result of and within two years of the accident?

2. What is the amount of weekly income replacement benefit to which Mr. Rudar is entitled?

3. Is Mr. Rudar entitled to supplementary medical expenses for services provided by Ashby Rehab Services, Columbia Neuro-Rehabilitation Services and Rathburn Physiotherapy claimed pursuant to subsection 36(1)(b) of the Schedule?

4. Is Mr. Rudar liable to repay Lombard income replacement benefits pursuant to subsection 70(4) of the Schedule?

5. Is Mr. Rudar entitled to a Special Award pursuant to subsection 282(10) of the Insurance Act?

6. Is the Insurer entitled to the repayment of its filing fee and its expenses of the arbitration?

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

Result:

1. Mr. Rudar is entitled to income replacement benefits on the basis that he is substantially unable to perform the essential tasks of his employment from February 9, 1996, and he continues to qualify for benefits 104 weeks after the onset of disability, which is November 18, 1996.

2. The parties shall recalculate and pay to Mr. Rudar the amount of his weekly income replacement benefits in accordance with paragraphs (ii) and (iii) of Mr. Pressman's report by:

a) adding $12.81 to pre-accident weekly income or increasing post-accident loss by $11.43 from November 25, 1994 until February 28, 1995; and

b) adding $5.23 to post-accident loss from November 25, 1994 to December 31, 1996, to account for bookkeeping services provided by Mrs. Rudar.

3. Mr. Rudar is entitled to supplementary medical expenses for treatment received from Ashby Rehab Development and Columbia Neuro-Rehabilitation Services up to June 19, 1997, but is not entitled to treatment expenses from Rathburn Physiotherapy.

4. Mr. Rudar is liable to repay Lombard income replacement benefits pursuant to section 70(4) of the Schedule as set out in this decision.

5. Mr. Rudar is entitled to a lump sum Special Award in the amount of $2500.00, inclusive of interest.

6. The Insurer is entitled neither to the return of its filing fee nor to its expenses of the arbitration.

7. Mr. Rudar is entitled to interest on any amounts owing, and to his expenses of the arbitration.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on October 6, 7, 8 & 9 and November 21, 1997 before me, Susan Sapin, Arbitrator. Those present at the hearing and exhibits filed are set out in the Appendix to this decision.

(A) Entitlement to Income Replacement Benefits:

1) Accident and injuries sustained

Mr. Rudar testified that on the afternoon of November 18, 1994, he was driving slowly² along the Queensway with a friend, preparing to turn left, when his car was struck on the passenger side by a car coming out of a parking lot. He stated that his head was jolted from left to right. He did not hit his head. He immediately felt pain on the left side of the back of his neck and his left upper back muscle. He felt a lump below his left ear. He started to shake and shiver, as if he had been exposed to extreme cold. He was helped to a tow truck, where he waited for the police to arrive. He was interviewed by a policeman and stated that he could not at first recall what had happened, but that it came back to him after a few moments. He refused an ambulance but did not feel well enough to drive. His friend, who had been in the passenger seat, was uninjured and drove him home, where he lay down on the couch with an icepack on his neck until his wife came home. His symptoms worsened overnight and he went to the Mississauga Hospital Emergency Department the next day. He was examined and asked if he had hit his head; he said no. He was not kept for observation. He was prescribed medicine and told to see his family doctor, which he did the following Monday. Mr. Rudar consistently related this same version of events to those medical evaluators who inquired about it.

Mr. Rudar suffered soft tissue injuries to his neck in the accident, and complained of headaches as well as pain and pins and needles in both shoulders. Dr. Hung, his family doctor, prescribed painkillers, muscle relaxants and a neck collar, ordered x-rays, and referred him for physiotherapy.

Mr. Rudar attempted to return to work from October 23, 1995 to February 9, 1996. Despite extensive therapy and treatment for his neck, shoulders and arms both before and after this, Mr. Rudar stated he has not been able to return to work.

2) The Test

Mr. Rudar is entitled to income replacement benefits pursuant to paragraph 7(1)1 of the Schedule if he establishes on a balance of probabilities that he was employed at the time of the motor vehicle accident and that the accident caused an impairment which renders him substantially unable to perform the essential tasks of that employment within two years of the accident. The parties could not agree on, and presented no argument on, what benefits Mr. Rudar was entitled to should I find that he continued to qualify for income replacement benefits 104 weeks after the onset of disability (which I determine to be 104 weeks after the accident, or November 18, 1996). The issue before me therefore is Mr. Rudar's entitlement to weekly income benefits from the date of termination on February 9, 1996 up to November 18, 1996.

The Insurer argued that Mr. Rudar does not suffer any impairment that renders him unable to work as a wallpaper hanger and that even if there is an impairment, it was not caused by the motor vehicle accident. Mr. Rudar stated that he was unable to perform the essential tasks of his employment due to severe headaches, neck and shoulder pain, shoulder and arm tremors, dizziness, nausea and difficulty with concentration, memory, balance and orientation, all of which he attributes to injuries sustained in the accident.

3) Essential Tasks

Mr. Rudar was self-employed as a wallpaper hanger. 90 percent of his work was in new commercial buildings and renovations, and 10 percent was residential. A worksite assessment report prepared by Laura MacGregor, an occupational therapist describes his work and classifies Mr. Rudar's position as moderate to heavy.³

Except for the amount of weight he was required to lift, the essential tasks as described by Mr. Rudar in his testimony and by Ms. MacGregor in her report were not contested. Where accounts differ, I prefer the evidence of Mr. Rudar.

I find Mr. Rudar's essential tasks to be: obtaining clients; visiting worksites; taking measure-ments; giving estimates; calculating expenses and profits; purchasing and carrying materials (rolls of wallpaper and pails of glue, plaster and water); carrying and setting up of equipment (tables, stepladder, scaffold); washing, repairing, sanding and sizing of walls; and glueing, applying and smoothing strips of wallpaper. I accept Mr. Rudar's testimony that each strip of wallpaper required 30 repetitive movements of his arms and shoulders and that he would hang approximately 44 strips in a typical eight-to-ten hour day. Mr. Rudar testified that some days were longer, 14 to 15 hours and he occasionally worked overnight to meet a deadline. Mr. Rudar testified that his work was steady, provided a good income, and he enjoyed it. At times he had no work, at others he had to hire assistants.

Mr. Rudar testified that most of the wallpaper used industrially comes in rolls 54 inches wide and either 30 or 60 yards long, and weighs approximately 60 to 74 pounds, depending on the thickness and type of paper. It is often supplied by the customer. In the course of her physical demands analysis, Ms. MacGregor weighed a 30-yard length roll of wallpaper stored in Mr. Rudar's garage, found it weighed 30 pounds and estimated that a 60-yard roll would weigh approximately 60 pounds. He told her he would carry one on each shoulder. Her report also indicates he told her that the buckets of wallpaper paste he used weighed 52 pounds and that he carried one in each hand.

The Insurer submitted that Mr. Rudar gave different estimates of the amount of weight he was required to lift to various assessors. Mr. Rudar testified that the weight of a roll of wallpaper varied depending on type, thickness and texture. I accept this explanation. There were several occasions in his testimony where Mr. Rudar was vague about measurements or estimates. I find this to be due to his obvious difficulties with memory and concentration and not to any attempt to mislead or embellish.

I find that Mr. Rudar's tasks required prolonged standing for 8 to 10 ten hours per day with infrequent breaks, squatting, sustained and repetitive reaching above the shoulders, to the sides and below the waist, sometimes from a stepladder, and repeated bending, lifting and carrying of weights from 30 to 74 pounds. He also had to balance himself, climbing and descending ladders and stairs. I find that repetitive arm and shoulder movements were a key component of his work. Mr. Rudar is self-employed. As such he must find and retain his own clients. I find that this is a function that necessarily requires a certain degree of self-confidence and emotional self-control. I find that the intellectual demands of the job consist of measuring, estimating the amount and cost of supplies and calculating expenses and profits. I find that the invoicing of clients and the bookkeeping and accounts was done by his wife.

4) Substantial inability two years after the motor vehicle accident

I find that the evidence of the initial therapy and treatment Mr Rudar received, his testimony about his attempt to work following his discharge from treatment and the medical evidence in the two years following the accident support the conclusion that Mr. Rudar was not substantially able to complete the essential tasks of his employment at any time within the two years after the accident, for the reasons set out below. I find that the medical evidence subsequent to November 1996, also supports this finding.

(a) Initial treatment

Debbie Kirby, a physiotherapist, treated Mr. Rudar for eight months following the accident. She found that although he was very compliant and motivated, and worked hard in a very active programme to "push through" his neck pain and headaches, he could not complete endurance programmes requiring repetitive arm movements due to neck spasms, muscle tremors in the left arm and headaches. She herself observed marked spasm and increased tone in his muscles.⁴ She referred him to the Health Recovery Clinic (HRC) for pain management and continued active physiotherapy.

A multidisciplinary team at HRC assessed Mr. Rudar on July 25, 1995. They found muscular tightness in the left upper trapezius and cervical paraspinals which contributed to his pain complaints and headaches and limited his ability to progress in a work-hardening programme.⁵The psychologist found significant levels of anxiety exacerbating his muscular tension and pain complaints, a medium level of symptom magnification, fairly good motivation for recovery and a medium level of pain avoidance and re-injury fears, indicating that Mr. Rudar might be a difficult client.⁶ His functioning was below the medium to heavy level required for his job. The team recommended a 12-week Functional Restoration and Pain Management Program, to include active exercise, work hardening, relaxation as one of a number of pain management techniques and education classes about his chronic pain condition.

A surface EMG performed on August 14, 1995 identified the source of Mr. Rudar's continuing pain and headaches as muscular dysfunction in the shoulder muscles.⁷ Biofeedback training was undertaken. HRC claimed the treatment was successful, but cautioned that "...the client must concentrate on utilizing his scapular stabilizing muscles during work activities" to avoid strain.⁸

A Myofascial Trigger Point Assessment on August 16, 1995 concluded that the pain and headaches were caused by chronic muscle strain and required treatment.⁹

The four-week progress report dated August 16, 1995 noted improvements in most functional abilities but found Mr. Rudar's preoccupation with shoulder tremors and conviction that he had a neurological disease to be a significant psychological impediment to recovery. As no abnormal neurological signs were noted, the physiotherapist stated that the symptoms were likely anxiety related and felt it important that Mr. Rudar receive reassurance from a neurologist before further progress could be made.¹⁰

"Reassurance" was provided in the form of MRI scans of the cervical spine and left shoulder, which proved to be unremarkable.¹¹

The September 20, 1995, 8-week progress report noted that Mr. Rudar had a rigid belief system and continued to focus on an underlying pathology as being the cause of his pain problems. Phy-sically, he was found to lack the endurance for repetitive arm movements required of a wallpaper hanger.¹²

HRC's final report November 7, 1995 noted that Mr. Rudar's rigid belief system concerning his physical pain complaints had resulted in self-reported functional limitation that was unmodifiable during the program, but that after the MRI scan, Mr. Rudar's anxiety levels decreased signifi-cantly, participation on final testing improved and he committed to return to work. Even so, the report noted that there was no major change in the location or severity of his pain complaints. In fact, the reports indicate that Mr. Rudar continued to complain of headaches, pain in his left neck and shoulder and right wrist, shakiness of the shoulder girdle, and difficulty sleeping throughout his treatment at HRC. Mr. Rudar testified that he did not feel much better after his three months at HRC, but nevertheless determined to try and return to work.

The team's final opinion was that "Mr. Rudar is capable of performing at a light to medium classification..., however, due to self-limiting behaviours this may not be an accurate measure of his abilities." He was discharged on October 23, 1995 as capable of returning to work with no physical, functional or psychological impairment which would substantially disable him from returning to his pre-accident employment, but was encouraged to pace his work.

(b) Return to work

Mr. Rudar testified that he attempted a modified return to work from October 30, 1995 to February 9, 1996, when he was unable to continue due to pain.

He said he willed himself to work one and a half hours every day but his pain increased to the point where he could not endure it. He hired others to work with him but towards the end he did not try to obtain any more new contracts because he felt he could not do the physical work. He said the pain in his shoulders and neck was aggravated by the many repetitive movements required in his work. He had pain in his right hand. The headaches which had begun after the accident, two or three times a week at first, became more frequent and severe until he "couldn't take it any more." He occasionally felt dizzy and nauseated and his shoulder was shaky. He stated he could not do his calculations and estimates, could not concentrate or remember the names of acquaintances, and had frequent outbursts of temper. He was anxious. Concentration increased his headaches. He described a "buzziness" in his head. He had difficulty sleeping, everything took twice as long to do and he could not do anything to the same extent as before the accident. He could no longer assemble the scaffold or move furniture, and could only do a little bit of spreading glue and putting the sheets of wallpaper up on the wall.

Mrs. Rudar testified that during the period her husband returned to work, he was very stiff and sore, particularly his neck, shoulders, arms and right hand and that he suffered from severe headaches that woke him up several times in the night. She said when he came home from work every day he would lie still on the couch with an ice pack, and sometimes his arms were so sore she would massage them. He could not concentrate on his calculations and she felt "it was all too much for him." She would find him crying, frustrated that he could not perform as he did before, and said he was very irritable. She stated they no longer socialized or pursued shared activities such as bowling or dancing. They no longer had sexual relations. He no longer played with their two boys aged 12 and 10.

(c) The Insurer's medical evidence

Dr. Kwok, an orthopaedic surgeon, examined Mr. Rudar on February 17, 1995, diagnosed soft tissue injuries and felt that, theoretically, Mr. Rudar should be able to return to work after three weeks of active rehabilitation.¹³

Dr. French, an orthopaedic surgeon, examined Mr. Rudar at the Insurer's request for a disability assessment on July 27, 1995. He noted Mr. Rudar's complaints of significant recurring neck pain, intense headaches three to four times a week, for which he took Tylenol 3 and Naprosyn, tremors in both shoulders and upper arms, numbness in the finger and hand, a feeling of gross depression, driving phobia and lack of interest in sex. He diagnosed soft tissue strain as the cause of the complaints but found very little objectively to substantiate them; nevertheless, he found Mr. Rudar "obviously not ready to return to work." He stated his long term prognosis was ex-cellent "from an orthopaedic point of view" but felt that a major stumbling block in his recovery was his fear of harming himself. He felt it was important that Mr. Rudar receive psychiatric and psychological counselling, stating: "I think the longer we keep him in a formal treatment pro-gram the more we convince him he has a physical disease."¹⁴

Apart from pain management treatment provided by the multidisciplinary team at HRC which included a behavioural therapist, Mr. Rudar received no psychological or psychiatric counselling until September 1996, when his family doctor referred him to Ashby Rehab Development.

On September 26, 1995, about a month before his discharge from treatment and return to work, Mr. Rudar was examined by Dr. Moddell, a neurologist retained by the Insurer. He noted the same complaints as did Dr. French but found that, "from a neurological point of view," Mr. Rudar was quite able to perform the essential duties of his occupation and "the main difficulty at this point are conditioning and soft tissue pain." He ruled out a head injury, found the neck pain to be on a "soft tissue basis" and the headaches on a "tension stress basis" (and not caused by the accident) and found no evidence of any muscular or nerve pathology in his shoulder. His opinion was that there were no existing or future neurological sequelae of the accident.¹⁵

Lombard terminated income replacement benefits on February 9, 1996. Mr. Rudar requested a DAC disability assessment, which Dr. Gordon Sawa, a neurologist, conducted on March 12, 1996, three weeks after Mr. Rudar had abandoned his attempt to return to work. Dr. Sawa reported a normal neurological examination. He found that the continued complaints of headaches, neck and shoulder pain, right arm numbness and sleep disturbance due to pain originated from the soft tissues of the cervical region and the shoulder joints. He noted that Mr. Rudar was taking Tylenol with codeine, a muscle relaxant and Naprosyn to alleviate his symptoms. He diagnosed tendinitis in both shoulder joints and on examination, found crepitation in the left. He judged Mr. Rudar not to be disabled from work as a wallpaper hanger in spite of his pain complaints, but added: "This is not to say that he may not continue to have some impairment functioning as a wallpaper hanger, given that he does have pain in the shoulders."

As a result of this assessment, Lombard terminated weekly benefits April 5, 1996. The psycho-logical issues raised by HRC and Dr. French were not addressed in the assessment. There was no further medical evidence from the Insurer until a rehabilitation DAC assessment June 19, 1997.

(d) The Applicant's medical evidence

On August 6, 1996, Dr. Hung reported that Mr. Rudar could not return to wallpapering because of shoulder and neck pain. He recommended retraining for work in which Mr. Rudar would not have to raise his arms above the shoulders.¹⁶ A June 1996 letter to Dr. Hung from the Rathburn Physiotherapy & Sports Medicine Clinic recommended further frequent treatment due to long-standing symptoms, and stated that "...it seems clear, even at this stage, that his previous occupation may be difficult to return to."¹⁷

Dr. Kirk Klymchuk, chiropractor and Clinic Director of Columbia Rehabilitation Centre, who treated Mr. Rudar from July 3, 1996 to September 30, 1996, reported that his symptoms lessened but did not resolve, and as a result, Mr. Rudar was unable to return to wallpapering. He recom-mended retraining to a job with no heavy lifting, no lifting above shoulder height and no sustained cervical spine extension.¹⁸

I find that the medical evidence up to November 1996 establishes that Mr. Rudar was substantially disabled from the essential tasks of his employment two years after the accident, for reasons which will be explained below. Subsequent medical evidence also supports this finding.

(e) Medical evidence after November, 1996

Recent medical evidence submitted by Mr. Rudar suggests that his headaches, shoulder tremors and emotional and cognitive symptoms are due to a head injury sustained in the accident. The Insurer argued that there is no head injury, and that his symptoms are due to an emotional impairment due to psychological factors, which is not disabling, or, possibly, Parkinson's disease.

I do not find, on a balance of probabilities, that Mr. Rudar suffered a head injury. Mrs. Mira Ashby's diagnosis¹⁹ of a head injury made "in our professional way" is not reliable. There is no evidence in her reports that either a medical or neuropsychological assessment was done. Her reports are consistent with Mr. Rudar's testimony about his psychological condition from October 1996 to June 1997, and so I find them accurate in that respect; however, the limited testing done to determine impairment was not explained and her assessment of cognitive impairment appears to be based largely on what Mr. Rudar told her.

Dr. Frank Adams, a neuropsychiatrist who specializes in brain disorders and pain management, treated Mr. Rudar at Columbia Neuro-Rehabilitation Services from February to June 1997. He diagnosed "chronic cerebral insufficiency secondary to a brain injury from a motor vehicle accident in 1994" intractable pain and a post-concussive chronic headache based on history, symptomatolgy and a limited physical examination. He explained that objective testing, such as a CT scan, could not reveal a brain injury because such injuries rarely affect the structure of the brain, rather, the damage is at the molecular level and involves brain poisoning by abnormal brain chemistry caused by the injury. Dr. Adams also found extra-pyramidal syndrome (EPS), which he stated "may be a reflection of disturbances in the deeper associative areas of the brain, rather, the damage is at the molecular level and involves brain poisoning by abnormal brain chemistry caused by the injury. Dr. Adams also found extra-pyramidal syndrome (EPS), which he stated "may be a reflection of disturbances in the deeper associative areas of the brain, notably the basal ganglia." The EPS refers to the cogwheeling (involuntary jerking motion) Dr. Adams observed in both shoulders. He also diagnosed "executive discontrol syndrome," which he explained as intense irritability, inability to control tearfulness and lability. He found no evidence of a major affective disorder, stating in his testimony that Mr. Rudar suffered from an untreatable despondency that was a natural reaction based on his accurate perception of his hopeless situation. He stated that Mr. Rudar's presenting dullness, distress and difficulty concentrating were neuro-cognitive symptoms that were being aggravated by the pain condition. He prescribed Dilaudid, a morphine derivative he described as "the most potent pain medicine in the world," Zanax, a tranquilizer and muscle relaxant, and, eventually, MSContin, another morphine-type analgesic. He stated that Mr. Rudar's ability to tolerate what was in fact a lethal dose of these medications without side effects was one indication of brain injury. He stated that he noted no neurocognitive side effects from these medications. Mr. Rudar testified that he was devastated by Dr. Adam's diagnosis and reluctant to take such powerful medications, but they decreased his headaches dramatically. It was the first pain relief he had been able to obtain. He stated that Dr. Adams "saved my life." Dr. Adams found Mr. Rudar to be permanently disabled from any type of work.

I was not persuaded by Dr. Adams that Mr. Rudar suffered a brain injury. It was clear from the cross examination that little objective testing of Mr. Rudar's cognitive abilities was undertaken and Dr. Adams' own physical examination was quite limited; in fact he admitted that "others were looking after that." I find that I am being asked to accept Dr. Adam's conclusions on the basis of Mr. Rudar's subjective complaints and Dr. Adams' experience in the area of brain injury and pain management as set out in his extensive Curriculum Vitae, rather than on the basis of objective findings. This is not sufficient, particularly as other practitioners have provided equally plausible medical explanations for Mr. Rudar's symptoms.

Dr. Janis Miyasaki, a neurologist, examined Mr. Rudar as part of a multidisciplinary rehabilitation DAC assessment on May 8, 1997.²⁰ She noted marked physical symptoms, including cogwheeling, and diagnosed an akinetic rigid state. She reported that the most likely diagnosis was Parkinson's disease, which "may have been unmasked by the accident from the soft tissue injury. The perpetuation of his symptoms and lack of recognition of his symptoms may, however, be attributed to concentration on his headache as well as any underlying depression." She felt strongly that Mr. Rudar's depression should be treated, that significant improvement was possible and that Mr. Rudar must be weaned from the narcotics prescribed by Dr. Adams.

Two psychologists performed an extensive neuropsychological assessment as part of this same rehabilitation DAC. Mr. Rudar disagreed with their diagnosis of clinical depression. They determined Mr Rudar's poor performance on the neurocognitive tests to be due to pain and the effects of medication and depression and found no evidence of cognitive dysfunction that would suggest either a brain injury as a result of the motor vehicle accident, or oddly enough, an emerging motor disorder.²¹ They felt that a further neuropsychological assessment once Mr. Rudar's pain and depression were better managed would provide a more accurate picture of his neurocognitive status. They stated that, given his psychological profile, he was at significant risk for developing a psychological dependence on his opiate analgesic medicine in addition to physical addiction. They recommended continued counselling support from a registered psychologist and stated that treatment on the basis of an acquired brain injury was neither warranted nor psychologically helpful.

Dr. M.J. Gawel, a neurologist, provided a medical legal report on behalf of Mr. Rudar dated July 25, 1997. He found no cogwheeling or rigidity on examination but noted reflexes indicating Mr. Rudar may have signs of frontal lobe damage, possibly related to his flexion extension injury, but that are also found in Parkinson's disease. He reviewed Dr. Myasaki's report and Mr. Rudar's medical file and concluded there was "no evidence that Mr. Rudar suffers from Parkinson's disease at the present time." He defended the use of opiates as standard procedure in patients who had not responded to other treatments.

Alan Finlayson, psychologist and Executive Director of Columbia Neuro-Rehabilitation Services, stated that he could not offer a definitive answer regarding the development of Parkinson's disease following brain trauma. He felt Mr. Rudar definitely suffered from psychiatric problems, and that "...the most appropriate intervention is one that recognizes the multi-determinants of his problems."²²

Dr. Debow saw Mr. Rudar for an insurer's medical legal psychiatric assessment on August 25, 1997.²³ He examined Mr. Rudar's history in detail and concluded that underlying predisposing psychological factors and not the motor vehicle accident played the major role in the onset, sev-erity, exacerbation and maintenance of Mr. Rudar's pain condition. I find his report superficial, selective²⁴ and unreliable because it contradicts much of the evidence presented and fails to explain, if in fact Mr. Rudar did suffer predisposing psychological problems, why it is that they did not disable him from his work prior to the accident.

Dr. Adrian Hanick, a psychiatrist who stated in his report that he has an academic and clinical interest in psychosomatic medicine, saw Mr. Rudar on two occasions and provided a psychiatric evaluation dated February 19, 1997. The Insurer urged me to place no weight at all on Dr. Hanick's report because he provided opinions in areas outside his expertise and provided no "overwhelmingly clear" diagnosis, which indicated that he was an advocate for his patient and that his report was therefore inaccurate and biased. Counsel referred me to specific arbitration and court decisions in which Dr. Hanick had been previously discredited on this basis.

Having reviewed Dr. Hanick's report, I do not agree with this position. Although I do not find that the evidence supports his opinion that Mr. Rudar's symptoms are due to a head injury, I do find his description and analysis of Mr. Rudar's psychological condition to be, for the most part, reasonable, fair, accurate, and consistent with the evidence as a whole. For example, his opinion that Mr. Rudar's headaches contributed to his cognitive difficulty is consistent with the DAC neuropsychological opinion. That he found them to be post-traumatic, with chronic tension, vascular features and cervicogenic components as contributing factors is not unreasonable. His observation that Mr. Rudar suffered from anxiety, despondency and affective lability, and was sexually and socially withdrawn causing impairment in social, occupational and personal functioning and diminished self-esteem accords with Mr. and Mrs. Rudar's testimony and was noted by others. I find it accurately describes Mr. Rudar's condition. Dr. Hanick attributes these features to both a post-concussional disorder and a significant adjustment disorder, and also diagnosed an intense and disabling chronic pain disorder. He based the first diagnosis on interviews with Mr. Rudar and a review of the medical evidence, from which he concluded that Mr. Rudar suffered a "violent" movement injury of his neck and substantial physical injury. Although his statement that it is well known that such an injury could subsequently cause cognitive difficulties even with no blow to the head or loss of consciousness may be true, I find the evidence as a whole does not point to substantial injury and does not support a conclusion that there was a head injury.

I find the evidence does support his diagnosis of adjustment disorder regardless of whether the disorder relates to the consequences of a head injury or to the drastically altered circumstances of Mr. Rudar's life as a result of his pain experience. Dr. Hanick's finding that Mr. Rudar's difficulties are aggravated by a sleep disorder is reasonable, given Mr. Rudar's longstanding complaints of sleep disturbance, and is independent of a finding that there was a head injury. I prefer Dr. Hanick's opinion over that of Dr. DeBow because I find his psychiatric assessment to accord more with Mr. and Mrs. Rudar's testimony and the evidence of other psychological experts, and to be more thorough, balanced and reasonable than the assessment of Dr. DeBow.

(f) Finding on disability

The law is clear that an arbitrator need not base a finding of disability on a clear diagnosis.²⁵ I find on a balance of probabilities, despite the diversity of medical opinion to date, that Mr. Rudar was substantially unable to perform the essential tasks of his employment two years after the accident because of persistent neck, shoulder and arm pain, severe intractable headaches, anxiety, and emotional and cognitive difficulties.²⁶

Mr. Rudar's complaints about his symptoms have been consistent from the date of the accident. His testimony at the hearing was at times emotional and tearful but I find no reason to disbelieve his testimony about the severity of his pain and symptoms or their effect on his ability to work. I do not find that he exaggerated his complaints or his suffering. It was evident that the hearing was very stressful for him. He tired visibly as his testimony progressed. I attribute his confusion and his sometimes unsatisfactory answers to the Insurer's questions to his evident difficulty with comprehension, memory and concentration and not to any attempt to mislead. His belief in his pain and his disability was genuine and remained unshakeable.

I have found repetitive arm and shoulder movements to be a key component of Mr. Rudar's work. According to his evidence, and Mrs. Rudar's observations, it is precisely this activity that caused Mr. Rudar pain to the point that he was unable to continue. Dixie Rehab and HRC found objective explanations for his pain and documented his difficulty in building up his endurance for repetitive arm and shoulder movements; even the HRC discharge report acknowledged that Mr. Rudar was not ready for the full measure of these movements actually required by his work when he returned to it, and advised him to pace himself. He testified that he did so, going so far as to hire others to help him. In spite of this he was still unable to work. I find that, given that Mr. Rudar is self-employed and would work overtime to meet deadlines, pacing himself was simply not realistic. Psychological problems identified by Dr. French²⁷ and HRC as a major stumbling block to recovery went untreated. I find that all of Mr. Rudar's treating practitioners in the first two years identified repetitive movements of the arms and shoulders as the reason Mr. Rudar could not resume his work. Even Dr. Sawa acknowledged that his pain could cause "some impairment" of function. Given the actual use of arms and shoulders in Mr. Rudar's work, and the preponderance of evidence, both objective and subjective, I find that "some impairment" coupled with the neck pain, headaches and untreated psychological factors, equates to a substantial inability to perform the essential tasks of his employment. I make this finding based on Mr. Rudar's testimony, corroborated by his wife, and the medical evidence available up to November 1996.

I find that the recent medical evidence also supports a finding that Mr. Rudar developed a chronic pain disorder with symptoms that disabled him from performing the essential tasks of his employment two years after the accident and continue to do so regardless of whether or not the symptoms resulted from a head injury.

(5) Causation

Mr. Rudar must establish on a balance of probabilities that the injuries he sustained in the motor vehicle accident significantly or materially contributed to his disability.²⁸ The accident need not be the sole cause, nor is it necessary for me to determine the precise contribution of any other factors.

The Insurer argued that Mr. Rudar's accident was a minor one and so could not have caused his disability, if any. It also argued that Mr. Rudar does not meet the test on a balance of probabili-ties because the medical evidence provides equally plausible explanations for his disability, unrelated to the accident. These are: secondary gain; emotional impairment due to pre-existing psychological difficulties not resulting in a substantial inability to work; and Parkinson's disease. As I have found that Mr. Rudar is disabled from his work due to his pain, headaches, emotional and cognitive difficulties and also find that the evidence at this time does not support the conclusion that there was a head injury, what remains to be determined is whether the disability was caused by the accident. One factor I dismiss out of hand at the outset is secondary gain, as no evidence of this was presented.

Based on Mr. Rudar's description of the motor vehicle accident set out earlier, I find that the accident was relatively minor. Although Mr. Rudar's counsel suggested that the fact that Mr. Rudar was looking to the left, and not straight ahead at the time of impact, may have caused a greater than usual flexion-extension injury to his neck, I heard no evidence to support this.

There is, of course, no question that the soft tissue injuries to Mr. Rudar's neck were caused by the accident, and I find on the evidence that this original injury caused Mr. Rudar's disability.

Mr. Rudar complained immediately of neck pain, headaches, symptoms in his shoulders and pain in his right hand, and these physical complaints have remained consistent throughout. I find that, except for the right-hand complaints, the evidence of Debbie Kirbie, HRC, Dr. Hung, Dr. Kwok, Dr. French, Dr. Moddell, Dr. Sawa and Dr. Miyasaki all relate Mr. Rudar's complaints to the original soft tissue injury. Dr. Moddell's opinion that the headaches were merely tension head-aches not caused by the accident stands out as an anomaly and I reject it.

I find that the preponderance of evidence indicates that Mr. Rudar developed a chronic pain condition and severe intractable headaches as a result of the soft tissue injuries sustained in the accident. That, and his inability to work as a result of the pain, caused psychological symptoms including anxiety, some form of depression, and emotional control difficulties, which in turn exacerbated his pain experience. The evidence supports a finding that all of these factors, and possibly his pain medication, contributed to his cognitive impairment. As I find Mr. Rudar to have been fully functional in all aspects of his life prior to the motor vehicle accident, having heard no evidence to the contrary, I find that, when all factors are considered, the motor vehicle accident is the major contributing factor without which Mr. Rudar would have been working two years after the accident.

With respect to whether or not Mr. Rudar may be suffering from Parkinson's disease and, if so, whether it could have been caused by the accident, I find the evidence to be inconclusive. Dr. Miyasaki stated it could have been "unmasked by the accident from the soft tissue injury." Dr. Finlayson reviewed her report and commented that it was not clear whether she implied a causal relationship between the accident and Parkinson's. I agree and do not speculate further on her cryptic statement. Dr. Gawel also reviewed her report but concluded from his own examination that Mr. Rudar did not suffer from Parkinson's disease "at this time." When asked on cross-examination about Parkinson's disease, Dr. Adams stated that Mr. Rudar's EPS symptoms could be characteristic of the disease or could result from medication (although he said the latter was very unlikely) as well as a brain injury, and that although it was possible to get Parkinson's with-out a brain injury or trauma, it was very unusual to develop Parkinson's spontaneously at age 42 without some inducing circumstances.

It was clear from the evidence that Mr. Rudar's neurological symptoms require further investiga-tion before their precise underlying cause can be determined.

(B) Entitlement to supplementary medical benefits:

Mr. Rudar is claiming the cost of treatment he received from Ashby Rehab Development, Rathburn Physiotherapy and Columbia Neuro-Rehabilitation Services pursuant to subsection 36(1)(b) of the Schedule. He is entitled to these expenses if they are reasonable. The Insurer is entitled, pursuant to subsection 37(1), to require a certificate from a health practitioner stating that the expense is reasonable and is necessary for the person's treatment. I head no evidence that the Insurer asked for such a certificate. The Insurer objected that it had yet to be presented with some of the invoices; I ruled that I would not consider any invoices predating the arbitration hearing that had not been submitted by the date of the hearing, without prejudice to Mr. Rudar's right to pursue appropriate remedies.

Mr Rudar received "post-traumatic head injury psychotherapy threatment" from Ashby Rehab Development from September 1996 to June 1997. The treatment was designed to "help him to overcome fear, to accept and to diminish pain by recognizing the reason for it, and to help him back into some kind of normalcy in daily living." By June, Mrs. Ashby concluded that treatment should be discontinued due to lack of progress.²⁹ As both Dr. French and HRC had indicated a need for psychological treatment prior to September 1996 and this was the first such treatment Mr. Rudar received, as it appears to have emphasized insight and coping strategies, as it was terminated when no longer useful, and as he testifed that it helped him a great deal, I find that this treatment was reasonable. I am mindful of the Rehabilitation DACs conclusion that treatment based on the assumption that Mr. Rudar had a brain injury was contraindicated; however, this assessment was not done until after Mrs. Ashby had concluded her treatment.

Mrs. Ashby prepared three assessment and progress reports and sent them directly to Lombard's Accident Benefits Specialist.³⁰ I find Mr. Rudar entitled to the expenses of these reports pursuant to subsection 57(1) of the Schedule.

Mr. Rudar attended Columbia Neuro-Rehabilitation Services for treatment from Dr. Adams from February until June of 1997. A review of his rehabilitation needs by Alan Finlayson and Sharyn Butt, a behavioral therapist, recommended a neuropsychiatric consultation for pain and depres-sion, a neuropsychological assessment, a neuromotor assessment, and neuromotor rehabilitation, and outlined the cost of each.³¹

I conclude from Dr. Adam's reports that he conducted the neuropsychiatric consultation and follow-up sessions between February and June 1997. It was not clear from the evidence whether the remaining recommendations were carried out or if additional treatment was provided. I find that the neuropsychiatric consultation and treatment received from Dr. Adams was reasonable, at that time, and from Mr. Rudar's point of view. It was reasonable for him to put his trust in a professional who he testified was the first to provide him with any real relief from his excruciating headaches. There did not exist at that time any other medical or expert evidence to assist in determining, from an objective point of view, whether the recommended assessments, and especially the recommended treatments, were reasonable. This evidence did not exist until the Rehabilitation DAC assessment of June 1997. For the same reasons as above, I find that assessments or treatment provided by Columbia prior to June 1997 are reasonable. However, as I have found on a balance of probabilities that the evidence at this time does not point to a brain injury, and as I agree with the DAC opinion that treatment on this basis would not be helpful, I disallow any treatment provided after the DAC assessment.

As I heard no evidence that the actual cost attached to any treatment provided or assessments performed was not reasonable, I assume that the Insurer does not dispute this.

It is clear from the DAC and other reports that further investigation of Mr. Rudar's condition is necessary and that he would definitely benefit from appropriate treatment; it is extremely unfor-tunate for Mr. Rudar that the experts cannot agree on what this should be. The best approach would be for the parties to agree on someone to do the necessary investigations.

I received no evidence about the number, type or cost of treatments from Rathburn Phsyiother-apy and Sports Medicine Clinic that would enable me to determine if they were reasonable and therefore dismiss this claim.

(C) Amount of Benefit:

The Insurer calculated Mr. Rudar's weekly income replacement benefit at $267.59 based on the report of its accountant, Coopers and Lybrand.³² Mr. Rudar submitted a report from his own accountant, Mr. G. Pressman,³³ stating that Coopers and Lybrand did not treat Mr. Rudar's business use of home office, vehicle insurance and bookkeeping expenses in a consistent fashion when it calculated his pre-accident income and post-accident loss.

Section 83 and subsection 10(8) of the Schedule require that an insured person's income and losses from self-employment be determined in the same manner as they would be under the Income Tax Act. The Insurer's report states that Revenue Canada does not allow deductions for business use of home expenses where a business operates at a loss. I heard no evidence that this was not so, hence I accept it as a fact. I reviewed both accountants' reports and, as Mr. Rudar's business operated at a loss after the accident, I agree with Coopers and Lybrand that they accur-ately calculated the business use of home office expenses as required by the Schedule and the Income Tax Act.

However, with respect to the vehicle insurance and bookkeeping services provided by Mrs. Rudar, I agree with Mr. Pressman that these two items should be treated consistently pre- and post-accident. I find that Mr. Rudar expected to return to work after the accident and so it was reasonable to keep both vehicles insured for business use at least until the end of the month in which it was determined he could not return to work, which I find to be February 1996. I find that the expenses for Mrs. Rudar's bookkeeping services and the accountant's fees are reasonable up to the end of the 1996 tax year, as I accept Mr. Pressman's statement that Mrs. Rudar would do the bookkeeping and preparation prior to the firm completing the annual financial statements and tax returns. For these reasons I direct the Insurer to adjust Mr. Rudar's weekly income replacement benefits in accordance with paragraphs (ii) and (iii) of Mr. Pressman's report by:

a) adding $12.81 to pre-accident weekly income or increasing post-accident loss by $11.43 from November 25, 1994 until February 28, 1994; and

b) adding $5.23 to post-accident loss from November 25, 1994 to December 31, 1996, to account for bookkeeping services provided by Mrs. Rudar.

(D) Overpayment:

(i) Post-accident income

During the period that Mr. Rudar returned to work he earned $2,226.96.³⁴ Pursuant to subsection 10(4)(b) of the Schedule, the Insurer is entitled to deduct 75 percent, or $1670.22, from any weekly income replacement benefits payable. Repayment was requested by letter dated March 6, 1996. I heard no evidence about whether or not Mr. Rudar repaid the amount; if not, I find that the Insurer is entitled to a credit for this amount. As the right of the Insurer to charge interest under subsection 70(7) is discretionary, as the Insurer did not ask for interest at the hearing, and as it did not raise the issue of repayment at all until the pre-hearing held on July 29, 1997, I do not find that this is a case where interest should be charged, and I do not award it.

(ii) Collateral benefits

A fax dated August 14, 1995 from Crown Life Insurance Company, Mr. Rudar's private disability insurer, to Lombard indicates that Mr. Rudar received disability payments from Crown Life in the amount of $929.64 per month from December 19, 1994 to May 18, 1995.³⁵ A letter dated October 6, 1997 to Mr. Gutelius from Crown Life confirms that Mr. Rudar received a total amount of $9,296.40 in disability benefits for the period December 19, 1994 to October 18, 1995.³⁶

Pursuant to paragraph 75(1)1 of the Schedule, the Insurer is entitled to deduct payments received from a private disability insurer from weekly income replacement benefits payable. Subsection 70(4) requires that the insured person shall repay weekly income benefits received from the Insurer where the insured person received private disability payments. Subsection 70(5)(a) requires the Insurer to give notice of the amount that is to be repaid. Where the original over-payment was not made to the insured person through error, fraud or wilful misrepresentation, there is no time limit within which the notice of repayment must be given. However, the Insurer will only be entitled to charge interest on the amount repayable from the fifteenth day after notice is given (Subsection 70(7)).

I find that the Insurer is entitled to deduct the full amount of collateral disability benefits received by Mr. Rudar from weekly benefits payable. The Insurer is entitled to charge interest on the December 19, 1994 to May 19, 1995 amount effective 15 days after the date of the pre-hearing conference, July 29, 1997, which I find to be the day that Mr. Rudar received notice that a claim for overpayment was being made.³⁷ I find the Insurer is entitled to charge interest on the remaining amount effective 15 days after October 6, 1997, which is the day the Insurer says it was first made aware of the remaining amount and brought it to the Applicant's attention at the hearing.

(E) Special Award:

Mr. Rudar claimed a special award pursuant to subsection 282(11) of the Insurance Act on the basis that the Insurer acted unreasonably in terminating benefits given the medical reports available at the time.

I find it was unreasonable for the Insurer to terminate benefits February 9, 1996, immediately after Mr. Rudar told it that his attempt to return to work was not successful. It was clear from the last available report, the HRC October 1996 discharge report, that the severity of Mr. Rudar's pain complaints had not changed, that despite this he was motivated to return to work, that the HRC team had identified psychological factors³⁸ and a chronic pain condition, and that Mr. Rudar was performing only at a light to medium level, whereas his job required a moderate to heavy level of ability. In these circumstances I find that, once the Insurer received that report, it should have adopted a wait-and-see approach, and once the attempt to return to work was over, it should have followed up with Mr Rudar to evaluate his experience and determine any outstanding treatment needs, rather than simply terminate benefits without an assessment.³⁹ It was left to Mr. Rudar to request a DAC assessment and when Dr. Sawa conducted one a month later, psychological issues were still not included. Dr. Sawa stated that Mr. Rudar was not dis-abled but that "this is not to say that he may not continue to have some impairment functioning as a wallpaper hanger, given that he does have pain in the shoulders." This was an ambiguous opinion of Mr. Rudar's ability to work and clearly required further clarification. This was particularly so given that Mr. Rudar had just spent over three months in what I find to have been an honest attempt to return to work.

The maximum special award is 50 percent of benefits payable. As I find the Insurer's conduct to be unreasonable but not flagrant or in bad faith, I find that a special award at the lower end of the scale is appropriate in the circumstances, and award a lump sum of $2,500, inclusive of interest.

Order:

1. The Insurer shall pay Mr. Rudar weekly income replacement benefits from February 9, 1996 to November 18, 1996, 104 weeks after the onset of the disability.

2. The parties shall recalculate the amount of Mr. Rudar's weekly income replacement benefits in accordance with paragraphs (ii) and (iii) of Mr. Pressman's report by:

a) adding $12.81 to pre-accident weekly income or increasing post-accident loss by $11.43 from November 25, 1994 to February 28, 1994; and

b) adding $5.23 to post-accident loss from November 25, 1994 to December 31, 1996, to account for bookkeeping services provided by Mrs. Rudar.

3. The Insurer shall pay for treatment received from Ashby Rehab Development and Columbia Neuro-Rehabilitation Services up to June 19, 1997.

4. The Insurer shall pay for the three assessments and progress reports prepared by Mrs. Mira Ashby.

5. Mr. Rudar shall repay to the Insurer post-accident income in the amount of $1670.22, without interest, and collateral benefits as follows:

a) $4648.20 for the period December 1994 to May 18, 1995, with interest from August 13, 1997; and

b) $4648.20 for the period May 18, 1995 to October 18, 1995, with interest from October 21, 1997.

6. The Insurer shall pay interest on any amounts owing by it, according to the provisions of section 68 of the Schedule.

7. The Insurer shall pay Mr. Rudar his expenses of the arbitration.

Susan Sapin Arbitrator

Date

APPENDIX

Present at the Hearing:

Applicant: Josip Rudar

Mr. Rudar's Representative: Carman Tiano Barrister and Solicitor

Lombard's Representative: Peter Gutelius Barrister and Solicitor

Witnesses:

Mr. Rudar, Mrs. Rudar, Dr. Frank Adams.

Exhibits:

Exhibit 1 Letter from Mr. Rudar to Lombard dated February 19, 1996

Exhibit 2 Letter from Lombard to Mr. Rudar dated March 6, 1996

Exhibit 3 Letter from Crown Life Insurance Company to Peter Gutelius dated October 6, 1997

Exhibit 4 Fax from Bonnie Folk to Mark Howie dated August 14, 1995

Exhibit 5 Year end statements for Academy Decor

Exhibit 6 Applicant's Arbitration Brief of Documents

Exhibit 7 Insurer's Arbitration Brief of Documents

Exhibit 8 Clinical notes and records of Dr. Fred A. Hung

Exhibit 9 Medical report of Dr. Adams, June 13, 1997

Exhibit 10 Medical report of Dr. Adams, April 17, 1997

Exhibit 11 Medical report of Dr. Adams, March 7, 1997

Exhibit 12 Medical report of Dr. Adams, February 14, 1997

Exhibit 13 Medical report of Dr. Adams, February 7, 1997

Exhibit 14 Curriculum Vitae of Dr. Adams

Exhibit 15 Accounting report of Mr. G. Pressman dated February 19, 1997

Exhibit 16 Report of M. Alan J. Finlayson, Ph.D, C.Psych. dated July 28, 1997

Exhibit 17 Invoice from Ashby Rehab Development dated June 10, 1997

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.
2. 2He stated in his testimony that it was about 5 km/h.
3. 3Exhibit 6, Tab 21, report dated July 6, 1995.
4. 4Undated letter from Ms. Kirby, Exhibit 6, tab 19.
5. 5Exhibit 6, tab 23, p. 2.
6. 6Exhibit 6, tab 23, p. 4.
7. 7Exhibit6, tab 24.
8. 8Exhibit 6, tab 28, p. 5.
9. 9Exhibit 6, tab 25.
10. 10Exhibit 6, tab 26.
11. 11done in October 1995.
12. 12Exhibit 6, tab 27, p. 3.
13. 13Exhibit 6, tab 1.
14. 14Exhibit 6, tab 3.
15. 15Exhibit 3, tab 4.
16. 16Exhibit 6, tab 8.
17. 17Exhibit 6, tab 8.
18. 18Exhibit 6, tab 9, letter dated September 30, 1996.
19. 19Exhibit 6, tab 10, p. 4, report dated October 21, 1996.
20. 20Exhibit 7, tab 3.
21. 21Their finding that the degree of cognitive impairment was not consistent with the presence of an emerging motor disorder appears to contradict Dr. Miyasaki's opinion that Parkinson's, which is presumably a "motor disorder," was the most likely diagnosis.
22. 22Exhibit 16.
23. 23Exhibit 7, tab 4.
24. 24For example, he failed to mention psychological factors found to be significant by other investigators and emphasized certain factors without any satisfactory explanation or justification.
25. 25Edwards and State Farm Mutual Automobile Insurance Company (July 12, 1993), OIC A-001707: confirmed on appeal, February 1996.
26. 26I note that the evidence indcates that Mr. Rudar's carpal tunnel symptoms were considered to be mild and mostly in the right hand. I do not find on the evidence that this condition, on its own, contributed to a substantial inability to perform the essential tasks of employment, although it clearly added to Mr. Rudar's distress.
27. 27Although Dr. French is not an expert in psychology, his recommendations are not be taken lightly. He looked at Mr. Rudar's situation from the point of view of looking at the whole person. Subsequent medical evidence proves he was right about the psychological component of Mr. Rudar's condition.
28. 28Adopted as the correct test by Director's Delegate David Draper in Malabanan and Canadian General Insurance Company (February 4, 1998), OIC P96-00073, as well as in many other Ontario Insurance Commission decisions.
29. 29Exhibit 6, tab 13, report dated June 10, 1997.
30. 30Exhibit 6, tabs 10 and 11 and Exhibit 17.
31. 31Exhibit 6, tab 29, report dated January 22, 1997.
32. 32Exhibit 7, tab 1, report dated March 8, 1995.
33. 33Exhibit 15, report dated February 19, 1997.
34. 34Exhibit 1, letter from Mr. Rudar to Lombard dated February 19, 1996.
35. 35Exhibit 4.
36. 36Exhibit 3.
37. 37The Insurer's Response to an Application for Arbitration dated May 2, 1997 does not contain a claim for repayment.
38. 38Psychological factors were also previously raised by Dr. French.
39. 39As Arbitrator Palmer stated in Gaba and Allstate Insurance Company (August 21, 1992), OIC A-000624: "In cases where an injured person continues to complain of pain, although independent orthopaedic surgeons cannot find objective signs of impairment, the insurer should be among the first to assist its insured to pursue psychological, rehabilitative or occupational counselling."