Neutral Citation: 1998 ONFSCDRS 12

FSCO A96-001624

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LESTER HALL

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Lester Hall, was injured in a motor vehicle accident on October 20, 1994. He received income replacement benefits from Zurich Insurance Company ("Zurich") through October 30, 1995, under section 7 of the Schedule.¹ Mr. Hall claims ongoing benefits at the agreed rate of $261.41 per week. The dispute did not resolve at mediation. Mr. Hall's arbitration hearing was held at the Ontario Insurance Commission, North York on November 10, 11, 12, 13, and 19, 1997 under authority of the Insurance Act, R.S.O. 1990, c.I.8, as amended (hearing details are listed in the Appendix).

Result:

1. Mr. Hall is entitled to ongoing income replacement benefits under section 7 of the Schedule after October 30, 1995.

Evidence and Findings:

The main question in this case is whether Mr. Hall's chronic pain and emotional/psychological reaction to the accident cause him to suffer a substantial inability to perform the essential tasks of his job. Mr. Hall's symptoms cannot be measured objectively. Zurich argues that Mr. Hall's condition is not a result of the accident, that he is not motivated to return to work, and that the injuries do not qualify as disabling.

Mr. Hall was a welder/fitter at Ontario Bus Industries, but had been on temporary layoff for nearly three months before the accident. He is married, and lives with his wife, son and stepdaughter.

Mr. Hall drove to visit a friend in Atlanta, Georgia. His car was broadsided while making a left turn, and spun around. The driver's side of Mr. Hall's car was completely demolished, and it was a total loss. He was taken to hospital by ambulance, treated and released that day. The hospital records state that Mr. Hall suffered a five-to-ten minute loss of consciousness, amnesia, headaches, soft tissue neck and low back pain.

The health care records indicate that Mr. Hall has experienced headaches, mood swings, poor memory and concentration, sleep loss, chronic neck, left shoulder, left hip and low back pain, chest pain and general body aches after the accident. Prescription medication, chiropractic, physiotherapy, gym exercises, pool therapy, TENS, biofeedback and other treatment modalities have provided Mr. Hall with temporary relief. He has been diagnosed with chronic pain, depression and stress/anxiety.

Medical Evidence:

I persuaded by the medical evidence that there is no organic cause for Mr. Hall's pain. A CT scan in 1995 showed a bulging disc at L5-S1, but no herniation. There was also narrowing of the spinal canal and mild spondylolisthesis due to moderate degenerative changes of the spinal facet joints. Dr. M. B. Weber's neurologic testing in 1995, revealed minimal abnormality, and a second neurologist, Dr. David Morgenthau, found no neurological deficits. A third neurologist, Dr. Barry Little, also reported that the CT results were not significant, and that Mr. Hall's physical symptoms were not caused by the disc bulge. In testimony, Dr. Little said Mr. Hall's physical symptoms are out of proportion to the physical findings.

Zurich claims that Mr. Hall's symptoms are caused by pre-accident problems. He had a serious work injury in December 1990 when a heavy clamp fell off a bus and hit his right shoulder. Mr. Hall's family physician diagnosed right rotator cuff tendonitis, and the records show that he was off work for five months, undergoing physiotherapy. He returned to modified duties in May 1991, but the shoulder continued to bother him. Mr. Hall was off another month from work due to this injury in late 1991 and early 1992. In 1992 Mr. Hall missed a week's work due to flash burns in his eyes from welding, and he also had a bout of depression that year, but neither of these conditions persisted very long. He received pain treatment (medication and injections) for his shoulder injury up to the time of the accident, but worked full-time at Ontario Bus throughout 1993 until his July 1994 layoff.

Mr. Hall's work injury is distinctly different from those of the automobile accident. The records of Dr. King, his family physician, show that Mr. Hall's pain was confined to his right shoulder, whereas his accident injuries are left-sided. More importantly, he was working full-time at Ontario Bus for a significant period before his layoff. Mr. Hall was fully functional before the accident, and I find that his pre-accident health did not disable or significantly contribute to his accident injuries.

Psychological Evidence:

In the accident, Mr. Hall sustained a minor head injury. He told medical practitioners that he was unconscious for more than an hour, but his assertion is not corroborated by witnesses or the police. Mr. Hall has no memory of the event, and I rely on the hospital records that he suffered a five-to-ten minute loss of consciousness.

Mr. Hall suffered cognitive deficits after the accident. He has not been able to recall the collision, and his first memory is waking in the hospital. Mr. Hall's family physicians and other treatment providers record Mr. Hall's headaches, poor concentration, memory, lack of organizational skills, disorientation, sleep loss, mood swings, anger and frustration. Mr. Hall's wife testified about her husband's depression and deterioration since the accident.

Mr. Hall's evidence at the hearing confirms the health care records that he is confused and has a poor memory. He was unable to recall names or treatment he received from health care professionals. Mr. Hall could not remember any of his treatment with Dr. King, his family physician prior to and after the accident. Mr. Hall recalled seeing Dr. Morgenthau, a consulting neurologist, but shortly thereafter, testified that he could not recall the doctor or having been examined by this neurologist. Mr. Hall's initial testimony that Ontario Bus called him back to work after the accident is confirmed in a June 1995 company letter to him. But in later evidence, he could not recall having given this testimony. Similarly, Mr. Hall admitted and later denied receiving unemployment benefits, stating he had no recall of his earlier testimony.

Mr. Hall's evidence at the hearing together with the numerous reports of health care professionals cause me to find that he is often confused, and has a poor memory. I cannot rely on his evidence.

Experts identify Mr. Hall as depressed. Dr. Jonathan Siegel, a psychologist who tested and examined Mr. Hall at the Cranio-Cervical Rehabilitation Institute ("CCRI") in 1996, found evidence of moderate depression and anxiety. A second psychologist, Dr. Sergio Bacal, reported that Mr. Hall suffered symptoms of mild-to-moderate chronic depression. Dr. Adrian Hanick, a psychiatrist, also reported that Mr. Hall suffered from depression and anxiety due to the accident, and recommended neurocognotive testing. The notes of his family doctor continually mention depression and symptoms of depression. In August 1995, Dr. King's clinical notes state that Mr. Hall was "borderline psychotic."

Dr. Barry Little, a neurologist, tested and examined Mr. Hall. He stated at the hearing that though Mr. Hall probably sustained a minor brain injury, the symptoms normally subside within a year. However, he added that emotions and personality may prolong recovery.

In June 1995 Dr. Daniel Cohen, a psychologist at Health Recovery Clinic, concluded that Mr. Hall's personality made him hypersensitive to pain, pessimistic and vulnerable to life's turmoil. Dr. Cohen stated that Mr. Hall magnified his illness, and stated:

" The testing also revealed that Mr. Hall is acknowledging symptoms of severe anxiety and post-traumatic stress. Although I believe that his anxiety levels are significant, in my opinion he is not experiencing significant levels of post-traumatic stress. Additionally, the testing revealed that he is reporting significant levels of cognitive disturbance and clinical depression. Although, in my opinion, based upon the clinical interview, he is not clinically depressed, the significant level of cognitive symptoms are consistent with his presentation in the interview."

Dr. Cohen accepts that Mr. Hall experienced significant anxiety and cognitive disturbance.

Mr. Clive Anderson, a rehabilitation consultant at Sibley and Associates ("Sibley"), relied on Dr. Cohen's opinion. Mr. Anderson was hired by Zurich to assist Mr. Hall's work reintegration. His reports from December 1994 through February 1995 indicate Mr. Hall progressed well, but that he was frustrated and had ongoing cognitive problems.

In March 1995, Mr. Anderson reported that Mr. Hall's condition deteriorated dramatically. He withdrew socially and became depressed. After Mr. Hall missed a number of appointments with psychological experts, and stopped participating in rehabilitation, Mr. Anderson concluded that Mr. Hall's condition was due to pre-accident psychological factors, and he closed the file. However, Mr. Anderson did not conduct psychological testing and he is not qualified to render an expert opinion on Mr. Hall's condition.

In July 1996, three experts at the Multi-Disciplinary Assessment Centre concluded that Mr. Hall was not physically or psychologically disabled as a result of the 1994 accident. Dr. Patcai, a physiatrist, found inconsistencies and pain-magnification, with no specific physical impairments. The physiotherapist, Ahn Nguyen, reported he was pain-focused and that the tests underestimated his true physical abilities. Dr. Bacal, the psychologist, found mild to moderate symptoms of chronic depression. He was not satisfied there was an incapacitating psychological impairment, but cautioned that Mr. Hall described important post-accident cognitive deficits, which he had not formally assessed through neuropsychological testing.

The neuropsychological testing was performed in September 1996 by Columbia Comprehensive Rehabilitation Centre ("Columbia"). The psychologist, Dr. Salmon, stated the results were invalid because his general memory and IQ scores fell in the substantially-impaired range (below mental retardation). Dr. Salmon found these results inconsistent with his clinical presentation and psychosocial history. He drew no clear conclusions on causation or a particular diagnosis, but did state that this reaction might be of psychogenic (emotional) origin.

The vocational tests conducted at MultiMed Evaluation Services ("MultiMed") found Mr. Hall academically impaired. He could not follow directions, completed some tasks incorrectly and had difficulty in performing others. His overall academic skills were far below standard high school levels, and examiners commented that he was confused and had a poor memory.

Mr. Hall must prove the accident is a significant contributing factor to his condition.² I accept the expert evidence that Mr. Hall is a vulnerable person. He was a capable and productive employee and family man at the time of the accident. Mr. Hall was unconscious for five to ten minutes after the accident, and his post-accident health records are replete with consistent complaints of poor memory, confusion, headaches, sleep problems and pain focus after the accident. The experts do not agree on categorizing Mr. Hall's condition. However, whether labelled depression, chronic pain or anxiety disorder, it is not necessary for me to find a particular diagnosis.³

The evidence is clear that Mr. Hall's symptoms have arisen since the accident. I find that Mr. Hall has suffered continuous depression and reduced cognitive skills, characterized by headaches, poor memory, confusion, sleep loss, anxiety and chronic focus on pain. I prefer the opinions of Dr. Siegel and Dr. Hanick, and I find that the accident caused Mr. Hall's emotional/psychological condition.

Ability To Work:

Mr. Hall worked eight hour shifts, five days a week. He and his co-workers at Ontario Bus manually pushed the buses along the assembly line, and welded parts onto the chassis and frame. The welding equipment was large and bulky, but moved on rollers. He used a torch and bandsaw to cut the metal. Mr. Hall read blueprints and carried parts usually weighing 20 pounds, but occasionally more. He had to stand, twist, crouch, kneel, climb, lift and carry parts to fit, hammer and weld metal onto the bus frames.

Zurich argues that Mr. Hall is not motivated to return to work. Section 15 of the Schedule states that an insured person who is eligible for income replacement benefits shall make reasonable efforts to return to his/her job at the time of the accident or obtain other employment that is suitable to his/her personal and vocational characteristics. Mr. Hall was not recalled from layoff by Ontario Bus because the company apparently went bankrupt. Its successor corporation offered Mr. Hall his old job in 1995, but he declined due to his injuries.

Mr. Hall's employment history is evidence of his commitment to work. He had some experience as a plumber before coming to Canada, but he has no formal training or experience in North America. After high school in Canada, he worked as a truck assembler, while at the same time going to school for his welding certificate. Mr. Hall was a welder for two years before joining Ontario Bus in 1989. Except for the time he was off work due to his job injury, Mr. Hall has worked steadily as an assembler and welder since leaving high school, and he received good performance appraisals at Ontario Bus.

There are numerous reports from health care professionals since the accident indicating that Mr. Hall wanted to return to work and was anxious, disturbed and frustrated by his inability to support his family. The speech pathologist and sociologist at CCRI reported that Mr. Hall accepted his deficits and that he considered training as a chef in October 1996. Therapeutic Rehabilitation Services stated that Mr. Hall was ready to reconsider welding or train for other trades in February 1997. Columbia Work Hardening Centre reported in June 1997 that although Mr. Hall was pain-focused, he was cooperative and motivated to work.

Mr. Hall's training, experience and credentials are as a welder. His family has been under considerable financial strain, and could not afford retraining. I have no evidence that Zurich offered to retrain Mr. Hall. His poor memory and confusion are significant barriers to re-entering the workforce. The comments of Arbitrator Palmer are most appropriate: "In cases where an insured 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 occupational counselling."⁴ Considering Mr. Hall's cognitive difficulties, I do not accept that he was obligated to retrain for alternative employment.

Is Mr. Hall restricted by chronic pain? Columbia Comprehensive Rehabilitation Centre's opinion in November 1996 was that Mr. Hall required a functional restoration program and might resume work on a graduated basis if he was cognitively able. Columbia Work Hardening Centre assessed Mr. Hall in June 1997 and found he was capable of working at the "light occasional level," not the medium industry demands of his pre-accident job. The kinesthesiologist at Multi-Med Evaluations found in November 1997 that Mr. Hall could not sustain or perform repeated postures, and was unable to lift, carry and position metal parts for his welding job.

The surveillance shows that Mr. Hall is able to lift and carry moderate weights. Videotape taken in May 1997 shows Mr. Hall driving on various errands with his wife. He stacks boxes of 24 beer bottles from his car, and returns them to a Brewers' Retail. Surveillance also shows Mr. Hall walking with a pronounced left limp during the afternoon.

Functional testing at the Multi-Disciplinary Assessment Centre ("MDAC") supports the view that Mr. Hall could meet the lifting and carrying demands of his job. The physiotherapist's report mentions that Mr. Hall had a left limp, but states that Mr. Hall could not meet his job requirements for sustained reaching and standing.

The physiotherapist at MDAC, Ms. Anh Nguyen, reported that Mr. Hall did not use maximum effort. Her conclusion is based upon the lack of any objective measure for his pain complaints. Mr. Hall did not show cardiovascular strain during tests; he had full range of motion and showed inconsistent effort during functional tests. Ms. Nguyen concluded that Mr. Hall self-limited his true abilities, although the test indicates Mr. Hall genuinely views himself as disabled.

Pain is a subjective experience, incapable of objective measurement,⁵ and I accept it can arise from non-physical sources.⁶ Several health care professionals remarked that Mr. Hall's body movement was more fluid when he was not observed, tending to show that he consciously exaggerates his disability. However, there are also reports that Mr. Hall had a left limp after performing functional tests, and he also showed a pronounced left limp during unobserved surveillance. On this conflicting evidence, I am not convinced that Mr. Hall's low back and left hip pain are either consciously created or exaggerated. I rely on the findings of functional tests at MDAC that Mr. Hall is limited by pain from repetitive reaching and standing for lengthy periods.

Conclusion:

Is Mr. Hall restricted from resuming his employment duties by depression and chronic pain? Yes, for the following reasons. Although Mr. Hall has begun to organize his household life, and communicate with family members, his evidence at the hearing demonstrates he is easily confused, has a poor memory and unreliable recall. With these cognitive deficits, I am convinced that Mr. Hall could not read detailed blueprints, understand and recall directions and information accurately, organize his work to safely weld and co-operate with his supervisor and co-workers. I agree with Dr. Hanick and many of the other health care professionals that Mr. Hall's cognitive disabilities are significant barriers to his safe resumption of full-time industrial welding. As a consequence of Mr. Hall's cognitive difficulties and physical disabilities, I find that Mr. Hall has continuously suffered a substantial inability to perform the essential tasks of his job since the accident, and that he is entitled to ongoing income replacement benefits under section 7 of the Schedule after October 30, 1995.

Expenses:

Mr. Hall is successful in his claim and in accordance with previous decisions, I find that he is entitled to his expenses of the arbitration.

Order:

1. Zurich shall pay Mr. Hall $261.41 per week from October 30, 1995 ongoing, together with interest according to the Schedule.

2. Zurich shall pay Mr. Hall his expenses of the arbitration process.

July 24, 1998

Fred Sampliner

Arbitrator

Date

Appendix

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on November 10, 12, 13, 19, 1997, before me, Fred Sampliner, Arbitrator.

Present at the Hearing:

Applicant:

Lester Hall

Mr. Hall's

Michael J. Henry

Representative:

Barrister and Solicitor

Zurich's

Darrell P. March

Representative:

Barrister and Solicitor

Ms. Joanne McConnell of Canadian Verbatum Reporting Services recorded the proceedings.

Witnesses:

Lester Hall (Applicant)

Joyce Hall (Applicant's wife)

Dr. Barry Little (neurologist)

Exhibits:

The parties filed 16 exhibits.

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. 2Whitney and Cooperators General Insurance Company (March 31, 1993) OIC A-001005
3. 3Edwards and State Farm Mutual Automobile Insurance Company (July 12, 1993) OIC A-001707
4. 4Gaba and Allstate Insurance Company (August 21, 1992), OIC A-000624
5. 5Provenzano and Metropolitan Insurance Company, (August 5, 1992) OIC No. A-000380
6. 6Dickson v. Canada Life Casualty Company (1996) 32 O.R.2d 175 (Gen. Div.)