Neutral Citation: 1998 ONFSCDRS 63

FSCO A-010716

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

AGOSTINHO A. CAROLINO

Applicant

and

NON-MARINE UNDERWRITERS, MEMBERS OF LLOYDS, LONDON, ENGLAND

Insurer

DECISION

Issues:

The Applicant, Agostinho A. Carolino, was injured in a motor vehicle accident on October 18, 1990. He applied for and received statutory accident benefits from Non-Marine Underwriters, Members of Lloyds, London, England ("Lloyd's"), payable under Ontario Regulation 672.¹ Lloyd's terminated weekly income benefits on October 17, 1993. The parties were unable to resolve their disputes through mediation and Mr. Carolino applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

Some of the issues in this arbitration were further refined during the course of the hearing. At the outset of the hearing, the issue of the deduction of Canada Pension Plan ("CPP") benefits was raised in connection with any benefits found to be owing to Mr. Carolino following the date of termination, namely, October 17, 1993. However, as discussed more below, the issue was later clarified to pertain to benefits already received by Mr. Carolino (prior to October 18, 1993) as well as to any benefits owing to him after that date. The Insurer also clarified that the issue of a repayment of benefits was related to Mr. Carolino's receipt of CPP benefits prior to the date of termination. The amount of the repayment was calculated to be $461.20, being the amount by which Mr. Carolino's CPP benefits exceeded his weekly income benefits prior to October 18, 1993.

In connection with the expanded scope of the CPP issue, the issue of Mr. Carolino's entitlement to weekly income benefits was also expanded to include the period prior to October 1993. However, this was only for the purpose of determining Mr. Carolino's claim for CPP benefits deducted by the Insurer prior to October 1993, not for the purposes of any repayment of weekly income benefits.

Finally, the Insurer indicated at the conclusion of the hearing that it sought its expenses of the arbitration.

Therefore, the issues in this hearing are:

1. Is Mr. Carolino entitled to weekly income benefits from October 18, 1993, pursuant to section 12(5)(b) of the Schedule?

2. In connection with Mr. Carolino's claim for the CPP benefits deducted by the Insurer, is Mr. Carolino entitled to weekly income benefits from October 18, 1990 to October 17, 1993, pursuant to section 12(1) of the Schedule?

3. If the answer to Issue 2 is "yes," is Mr. Carolino entitled to the CPP benefits deducted by the Insurer from his weekly income benefits prior to October 18, 1993, pursuant to section 12(4)(b) of the Schedule?

4. Subject to the answers to issues 2 and 3, is the Insurer entitled to a repayment of $461.20, pursuant to section 27(3) of the Schedule?

Mr. Carolino also claims interest on any amounts owing and his expenses incurred in the arbitration proceeding. The Insurer also seeks its expenses of the arbitration proceeding.

Result:

1. Mr. Carolino is not entitled to weekly income benefits from October 18, 1993.

2. Mr. Carolino is not entitled to weekly income benefits from October 18, 1990 to October 17, 1993.

3. Mr. Carolino is not entitled to the CPP benefits deducted by the Insurer from his weekly income benefits prior to October 18, 1993.

4. The Insurer is not entitled to a repayment of $461.20.

5. Mr. Carolino is entitled to half of his expenses of the arbitration proceeding.

6. The Insurer is not entitled to its expenses of the arbitration proceeding.

Hearing:

The hearing was held in Hamilton, Ontario on January 20, 21 and 22, 1998. The matter resumed in Kitchener, Ontario on February 20, 1998 for final submissions. Mr. Carolino testified with the assistance of a Portuguese interpreter. Those present at the hearing, the witnesses and exhibits are set out in the Appendix to this decision.

Evidence and Findings:

Background

i) Accident and Injuries

Mr. Carolino was injured in a motor vehicle accident on October 18, 1990. He was 51 years old at the time and a resident of Kitchener, Ontario. The vehicle he was driving hit another car while passing through an intersection on his way to work. He immediately experienced pain in his chest, neck, right leg and left shoulder and arm. X-rays done at the hospital revealed degenerative disc disease in his cervical spine. The following day, Mr. Carolino saw his family physician, Dr. Cretiu, who diagnosed neck strain, upper back strain and right knee contusion. Five days later, Mr. Carolino saw Dr. Richardson, an orthopaedic surgeon, to whom Dr. Cretiu had referred him. Dr. Richardson diagnosed a "cervical derangement, sternal contusion and knee contusion." Since the accident, Mr. Carolino has continued to complain of pain in his chest, neck and left shoulder. He has also complained of sleep problems and of general nervousness and anxiety. In 1991, Mr. Carolino had episodes of fainting and chest pain, which he thought were heart-related. However, subsequent investigations did not reveal any underlying cardiac pathology. X-rays in September 1991 showed degenerative changes at the "first costochondral junctions bilaterally" (the first rib-sternum junction). X-rays in November 1992 showed a disc bulge in the cervical spine which "appear[ed] to impinge" on the spinal chord.

In January 1992, Dr. Cretiu referred Mr. Carolino to Dr. De Lucas for a psychiatric assessment. Dr. De Lucas diagnosed generalized anxiety disorder. Dr. De Lucas continues to see Mr. Carolino and in a follow-up report in March 1997, Dr. De Lucas diagnosed chronic pain disorder with secondary depression. In December 1992, for the purposes of an application for Canada Pension Plan benefits, Dr. Cretiu diagnosed Mr. Carolino as suffering from chronic pain disorder, chest wall pain, chronic right shoulder pain, cervical degenerative disc disease and generalized anxiety disorder. Dr. Lochead, a rheumatologist to whom Dr. Cretiu had referred Mr. Carolino, also filed forms with the Canada Pension Plan, but diagnosed left, as opposed to right, shoulder pain. In September 1996, Dr. Tunks, a psychiatrist to whom Mr. Carolino's counsel had referred him, diagnosed chronic pain disorder associated with reactive depression and post-traumatic anxiety, and undifferentiated somatization.

ii) Pre-Accident Employment

Prior to the accident, Mr. Carolino worked as a cook at a Swiss Chalet restaurant in Kitchener. He worked eight hours a day. He testified that his job consisted of a variety of activities, that he was not required to do the same thing repetitively throughout the day, and that he had time to take breaks and rest. His job tasks involved cleaning ovens; lifting boxes of chickens out of the cooler; cleaning, cutting and preparing the chickens to be cooked; placing the chickens on spits and lifting the spits onto racks in the ovens; and preparing potatoes to be made into french fries. Chickens weighed approximately 2.5 to 3 lbs, and Mr. Carolino would place 5 chickens on each spit. He would load approximately 30 to 35 spits into the ovens per day. The highest rack on which he would place the spits in the ovens was shoulder height.

iii) Pre-Accident Health

Mr. Carolino testified that he injured his right arm and shoulder in 1983, while working at a poultry processing plant (Tender Fresh). As a result, he missed six months of work and received workers' compensation benefits. He testified that he continued to experience problems with his right arm and shoulder after returning to work. He sought, but was denied, further workers' compensation benefits arising from his injury.

Other than this, Mr. Carolino testified that he felt strong and healthy prior to the 1990 motor vehicle accident. In particular, he said that he did not have left arm or left shoulder problems prior to the accident. He told at least two of the specialists he saw following the car accident that he did not have any prior health problems and that he had enjoyed good health.

iv) The Parties' Positions

Mr. Carolino maintains that, as a result of the motor vehicle accident, he has been rendered continuously disabled from the third anniversary of this accident from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, and that this meets the pertinent disability test under section 12(5)(b) of the Schedule. The Insurer submits that it properly terminated Mr. Carolino’s benefits in October 1993, as he was able to return either to his original job at Swiss Chalet or a reasonably suitable alternative.

In connection with the issue of CPP benefits, Mr. Carolino submitted that he was substantially disabled from performing the essential tasks of his pre-accident occupation at Swiss Chalet, and that this satisfies the relevant test of disability under section 12(1) of the Schedule. The Insurer maintains that on the basis of the numerous credibility problems which only fully came to light in the course of the hearing, as well as on the totality of the medical evidence, Mr. Carolino never satisfied the test of disability under section 12(1) of the Schedule, and is consequently not entitled to the CPP benefits the Insurer deducted from his weekly income benefits.

Medical Opinions as to Disability

In June 1994, Dr. Cretiu reported that Mr. Carolino had been permanently and totally disabled by the motor vehicle accident. Some of the specialists seen by Mr. Carolino also supported this view. For example, in March 1995, Dr. Wright, an orthopaedic surgeon, reported that Mr. Carolino had sustained a permanent impairment which had "converted into a problem of chronic pain to his cervical [and] lumbar spine and shoulders." Dr. Wright felt that Mr. Carolino would likely be unable to carry on with any form of gainful employment. In May 1995, Dr. Potashner, a rheumatologist, reported that Mr. Carolino was unemployable due to a "referred pain syndrome from the neck." Dr. Potashner also felt that Mr. Carolino’s job prospects were "at best limited due to his educational background," requiring him to look only for heavy manual jobs. In August 1996, Dr. Lochead reported that Mr. Carolino continued to have a "diffuse pain complex involving his posterior neck, his trapezius areas bilaterally, and the left ribcage." He had earlier found that Mr. Carolino was disabled from any gainful employment.

Two specialists found that the emotional and psychological aspects of Mr. Carolino's condition disabled him from returning to work. In September 1996, Dr. Tunks found that Mr. Carolino was emotionally vulnerable at the time of the accident, that the accident aggravated pre-existing physical problems and that the combination of psychosocial, psychiatric and chronic pain factors disabled him from full- or part-time employment in the future. In March 1997, Dr. De Lucas diagnosed chronic pain disorder with secondary depression, rendering Mr. Carolino "severely incapacitated to return to any gainful employment for an indefinite period of time."

Certain other specialists found that Mr. Carolino was neither physically nor psychologically disabled from returning to work. In May 1993, Dr. Ameis, a physiatrist, reported that "from every objective criterion of range of motion, strength, sensation and bulk, [Mr. Carolino] is intact and physically capable of working in a productive, safe fashion over a full workday." Dr. Ameis stated that the main problem was "one of anxiety, manifesting [itself] as a conversion disorder by which [Mr. Carolino created] a disability role for himself." Dr. Ameis felt that Mr. Carolino's conversion disorder should be dealt with through "psychological and emotional support while simultaneously [returning him] to productive activity."

In September 1993, Dr. Bacal, a psychologist, found that Mr. Carolino was not suffering from an "occupationally disabling psychiatric condition." He stated that "through his own beliefs and perception, and supported by iatrogenic influences [i.e. external factors related to his medical treatment], Mr. Carolino has concluded that he is irreversibly disabled and consequently unable to ever return to a working life." Dr. Bacal concluded that if Mr. Carolino were found not to be physically disabled, then he should be encouraged to attempt to return to work, while continuing psychiatric therapy.

In February 1995, Dr. Langer, an orthopaedic surgeon, found that Mr. Carolino was physically fit, that there was no accident-related reason for his symptomatology and that any disability was related to pre-existing problems. A week earlier, Dr. Chris, another orthopaedic surgeon, had reported that Mr. Carolino was "likely permanently disabled for any repetitive work," but in connection with his right arm (the pre-existing injury which was unaffected by the motor vehicle accident).

In August 1995, Dr. Digby, a rheumatologist, reported that the accident caused a temporary exacerbation of Mr. Carolino's pre-existing neck, upper back and shoulder problems and that these were superseded by various other physical and emotional symptoms unrelated to the accident. Dr. Digby identifies the chest pain episode in mid-1991 as the turning point in Mr. Carolino's medical condition, one which was not related to the effects of the motor vehicle accident. He states that his symptoms since that time were "in all probability...a continuation of his pre-existing pain problem."

Credibility

The determination of the issues in this case turns to a large extent on the veracity of Mr. Carolino's subjective complaints of pain and his reporting of his medical history to the specialists who examined him. However, the evidence raised a number of questions as to the veracity of Mr. Carolino's assertions.

First, Mr. Carolino testified that he did not suffer from left arm or shoulder problems prior to the accident. However, the pre-accident medical records contain references to left arm and shoulder pain in the five years preceding the accident. When confronted with this information at the hearing, Mr. Carolino was evasive and gave contradictory testimony as to the presence and nature of his pre-existing problems. At one point, he stated that his left arm never bothered him, while at another point, he stated that any problems with his left shoulder were due to work. He also acknowledged that he saw Dr. Hanna, a rheumatologist, in early 1990 complaining of intermittent work-related left arm and shoulder pain during the previous few years. Dr. Hanna diagnosed "chronic [left] shoulder syndrome that may be either a strain of the rotator cuff or subachromial bursitis." Approximately seven months after the motor vehicle accident, Dr. Hanna diagnosed "myofascial pain syndrome" in the right arm and shoulder, but made no mention of Mr. Carolino’s alleged left arm problems.

Mr. Carolino told certain specialists that he had had no pre-accident history of neck or back problems. However, he testified that his left arm and shoulder problems had affected his upper back and neck before the accident to the point that he had had sleeping difficulties. He was eventually treated by Dr. Hanna for these problems. Dr. Cretiu’s clinical notes and records also contain references to pre-existing upper back and neck pain. Regarding back pain, in 1995, Mr. Carolino told Dr. Wright that he had experienced low back discomfort at the time of the accident and that x-rays at that time showed degenerative disc disease in both the cervical and lumbar spine. However, none of the other records or medical opinions following the accident contain reports of post-accident back pain and only Mr. Carolino’s cervical spine was x-rayed at the time of the accident. X-rays were done in June 1991, but they were of Mr. Carolino's cervical and thoracic spine.

Mr. Carolino failed to give complete medical histories to a number of specialists he saw. For example, he told Dr. Tunks that he had only experienced left shoulder pain since the accident, and that he had only had a problem with his right arm in 1983. Mr. Carolino told Dr. Potashner that he had had no problems prior to the accident except for a minor wrist injury in 1983 which had resolved completely. In 1993, Dr. Bacal reported that Mr. Carolino did not acknowledge having prior or ongoing psychiatric treatment, despite his treatment with Dr. De Lucas.

Mr. Carolino testified that he briefly lost consciousness as a result of the accident. However, the medical reports immediately following the accident, including the ambulance call report and emergency room records, either do not mention any loss of consciousness or indicate that there was no such injury. The specialists' reports in the years following the accident also contain progressively more elaborate versions of an alleged loss of consciousness, ranging from a momentary loss of a few seconds or a few minutes, to being unconscious until waking up in the hospital where Mr. Carolino had been transported by ambulance following the accident.

Approximately five months before the motor vehicle accident, Mr. Carolino wrote the Workers' Compensation Board ("WCB") about the ongoing effects of his 1983 employment injury. He stated that since that accident, both of his arms had weakened and that he could no longer do repetitive or strenuous work. Six days following the motor vehicle accident, Mr. Carolino was interviewed by a WCB claims investigator about his workplace injury. He stated that he had developed problems in his left arm since 1983 as a result of having to favour his right shoulder. However, despite his ongoing visits with Dr. Hanna, Mr. Carolino denied that the left arm had required any medical treatment. He also indicated that his left arm problems were not nearly as significant as the right arm problems and (presently) did not require any medical care. At the hearing, Mr. Carolino denied that both of his arms had been affected by the workplace accident. Finally, the notes of his interview with the WCB investigator indicate that Mr. Carolino denied any new incidents or accidents, despite his motor vehicle accident less than a week earlier. At the hearing, Mr. Carolino gave various conflicting answers as to whether or not he had told the claims investigator about his car accident.

Both before and after the motor vehicle accident, Mr. Carolino told the WCB that he had left his previous employment at Tender Fresh for a light position at Swiss Chalet because of pain in his right shoulder. However, in his interview with the WCB shortly after the accident and at the hearing, Mr. Carolino stated that he had left Tender Fresh because the plant had closed down.

Mr. Carolino continued to pursue his workers' compensation claim into 1991. He sought temporary total disability benefits from October 18 to 30, 1990 (the two weeks following the motor vehicle accident) and a permanent pension, both in connection with his 1983 workplace accident. He wrote the WCB in February 1991 complaining of a recurrence of his 1983 injury, involving extensive right shoulder, arm and elbow pain. He wrote the WCB again in August 1991 and stated that "because [of] the injury on my right arm I am able to do just a light job." In neither of his 1991 letters did Mr. Carolino mention the motor vehicle accident. He only did this in 1992, when the WCB raised it in the process of investigating, and subsequently denying, his claim for further compensation benefits. Mr. Carolino did not pursue his claim further.

Mr. Carolino gave various conflicting reports as to his attempts to return to work. In late 1991, Dr. Lochead's reports suggest that Mr. Carolino was off work for three months following the accident and that he then returned twice (first for a period of four months from February to June 1991, then for a period beginning in November 1991). In early 1992, Dr. Cretiu reported that Mr. Carolino was off work from March 1991 onward. In March 1992, Dr. Tallon (an orthopaedic surgeon) reported that Mr. Carolino worked from December 1991 to March 1992, when he stopped due to pain. In 1993, Dr. Ameis reported only one attempt to return to work, being for two months in early 1991, following which no further attempts were made. In 1995, Mr. Carolino told both Dr. Wright and Dr. Potashner that he had never returned to work since the accident. In 1996, he told Dr. Tunks that he tried to return to work twice since the accident, once for two weeks and the other for three weeks. Mr. Piver, Mr. Carolino’s supervisor at Swiss Chalet, informed the WCB that Mr. Carolino had returned to work on October 31, 1990 (approximately two weeks following the motor vehicle accident). In his application for CPP benefits, Mr. Carolino reported that he had attempted to return to work on three different occasions, but "only lasted a couple [the word "few" is crossed out] of weeks." Finally, at the hearing, Mr. Carolino testified that he had attempted to return to work following the accident, but professed not to recall when, how many times or for how long this had occurred.

Mr. Carolino reported an accident-related fear of driving to at least two health practitioners. He told Dr. Bacal that he only drives minimally and only when absolutely necessary. However, he told Ms. Costa-Pinto, a counsellor and therapist, that he drives his daughter to school, his wife to the store, and himself to doctors. As discussed below, video surveillance shows Mr. Carolino driving and shopping on his own.

Video surveillance of Mr. Carolino (taken on at least eight separate occasions over a two-year period, 1993 to 1995) show him doing a number of activities inconsistent with the reports of disability he gave to the specialists. The surveillance also coincides with Mr. Carolino's application for CPP benefits in which he alleges "total disability." Mr. Carolino is observed bending and picking up a small child and carrying the child in his left arm while walking and pulling the child's toy along the ground with his right hand. He is seen performing various motions with his hands, arms, neck and back while cleaning his apartment balcony and barbeque. He is shown lying on the ground leaning on his left arm and elbow while installing fog lights on the front of his car. At this time, he is also seen lying on his back and working on the underside of the car with his arms raised above him and behind his head. He is observed driving, shopping and lifting bags of groceries from the trunk of his car with his left and right hands and arms. On one occasion, Mr. Carolino is seen balancing (sometimes precariously) on a six-foot ladder while reaching and working vigorously with his hands and arms in order to install a window air conditioner. He is also seen washing his car with a cloth and hose, and gardening. At all times throughout the surveillance, Mr. Carolino is able to move in various ways (bending, reaching, lifting, squatting, sitting, standing and walking) in a fluid and prolonged manner with no signs of pain, discomfort or limitation.

Dr. Tunks (who apparently viewed some of the surveillance shortly before the hearing commenced) testified that the activities shown on the tapes were to a certain degree inconsistent with his examination of Mr. Carolino, and that they showed more than what Mr. Carolino portrayed himself as normally capable of performing. Dr. Lochead (who saw the videotapes for the first time at the hearing) testified that he was quite surprised by what he saw and that the tapes showed significantly more physical ability than he would have expected based on Mr. Carolino’s reports. In my view, Dr. Tunks significantly understated the importance of the surveillance. I find the videotapes show significant ability on Mr. Carolino’s part and are quite inconsistent with his complaints of shoulder, neck and back pain.

On the basis of all of this evidence, I find that Mr. Carolino was not a credible witness and that he misled a number of individuals about the history and nature of his medical condition. I further find that the deficiencies in his evidence significantly affect the weight to be attributed to the medical opinions on causation and disability.

Analysis

(i) Causation

Mr. Carolino continues to complain of chest, neck and left shoulder pain, as well as sleep problems and general nervousness and anxiety. He maintains that these problems arose as a result of the motor vehicle accident. However, Mr. Carolino suffered from significant left arm, shoulder and neck pain, as well as sleep problems, prior to the accident. The physicians who saw Mr. Carolino shortly after the accident (Drs. Cretiu, Richardson and Carlton) did not diagnose left arm or shoulder injuries. Dr. Richardson found that Mr. Carolino suffered from significant neck pain, but had been told by Mr. Carolino that there had been no pre-existing neck pain. Dr. Carlton (who conducted an EMG test on Mr. Cretiu eight days after the accident) reported Mr. Carolino as saying that he had no (current) problems with his left arm. Dr. Cretiu’s 1992 opinion in support of Mr. Carolino's CPP application noted chronic right shoulder pain. Dr. Cretiu also reported that Mr. Cretiu’s previous medical history was "non contributory" to his current condition. Dr. Lochead's opinion for the same application noted left shoulder pain. Dr. Lochead had not been aware of Mr. Carolino’s pre-existing left shoulder, arm and neck pain. At the hearing, Dr. Lochead acknowledged the importance of knowing more about Mr. Carolino's pre-accident medical condition in determining the issue of causation.

Dr. Hanna, who had treated Mr. Carolino's right and left shoulders before the accident, only identified persistent right arm pain after the accident. This was also the view of Dr. Chris in 1995. Drs. Tallon, Stewart, Wright and Potashner (all of whom related Mr. Carolino's symptoms to the motor vehicle accident) did not have any information as to Mr. Carolino's pre-existing physical problems. Drs. Langer and Digby related Mr. Carolino's current complaints of neck and shoulder pain to his pre-existing medical condition.

On the basis of this evidence, I find that while Mr. Carolino may have suffered a temporary exacerbation of his pre-existing neck and left shoulder problem, he has not established on a balance of probabilities that his ongoing complaints are related to the effects of the motor vehicle accident. In particular, I find that Mr. Carolino has not established that he suffered left arm or shoulder pain as a result of the motor vehicle accident.

I am satisfied that Mr. Carolino's chest pain is related to the motor vehicle accident. However, the evidence regarding the 1991 episode of severe chest pain (which Mr. Carolino mistook for heart problems) is quite sparse. Dr. Lackner, a cardiologist, stated that he "presumed" that the episode was related to the injuries Mr. Carolino experienced in the car accident. Dr. Lochead only stated that Mr. Carolino's ongoing symptoms of chest pain were related to the accident, without saying that the 1991 episode was similarly related. Dr. Digby was the only physician who stated that the chest pain episode was not accident-related, but he based his opinion on the incorrect premise that there had been no complaints of chest pain until the date of the episode itself. In fact, there are numerous references from the time of the accident of sternal tenderness and pain.

However, I agree with Dr. Digby that the heart episode was an important event in the course of Mr. Carolino's complaints. Mr. Carolino, in fact, testified that he continued his attempts to return to work until he developed what he thought were heart problems (although he also maintained that he stopped work, not because of his heart condition, but because of his pain complaints). Dr. Tunks made a similar finding to that of Dr. Digby, but did not attribute as much weight to it as Dr. Digby. I, therefore, find that Mr. Carolino must show that the episode was related to the effects of the motor vehicle accident. On the scant evidence on this point, I find that Mr. Carolino has not discharged that onus. However, as discussed more below, even if the heart episode were related to the accident, I am not satisfied that it or Mr. Carolino’s lingering chest pains were a significant factor in any disability he may have had.

Mr. Carolino has been diagnosed as suffering from various psychological problems as a result of the accident: chronic pain disorder, depression, anxiety and somatization. In 1996, Dr. Tunks reported that Mr. Carolino suffered an accident-related exacerbation and deterioration in his physical and psychological condition. However, while he may not have had as much information as possible, I find that Dr. Tunks (both in his written report and his oral testimony) significantly understated the credibility problems in Mr. Carolino's reporting of his medical history and condition. At the hearing, Dr. Tunks also acknowledged that Mr. Carolino clearly suffered from chronic pain syndrome right up to the time of the accident and that it was therefore less likely that Mr. Carolino's post-accident disability was related to the effects of the motor vehicle accident. Dr. Tunks found that Mr. Carolino was psychologically fragile prior to the accident, despite the absence of evidence of emotional difficulties at that time. Dr. Tunks also identified the heart episode in 1991 as a psychologically important event. Ms. Costa-Pinto’s late 1991 report suggests that Mr. Carolino's episodes of severe chest pain and fainting caused Mr. Carolino to discontinue his attempts to return to work. This is consistent with Mr. Carolino’s testimony at the hearing and with Dr. Lochead’s January 1992 report which states that he tried to reassure Mr. Carolino that he did not have heart disease. In my view, Mr. Carolino’s unfounded perception that he suffered from a disabling heart condition was a significant factor in the development of any psychological difficulties he may have experienced following the accident.

Dr. De Lucas diagnosed Mr. Carolino’s post-accident psychological condition in a similar manner to Dr. Tunks. However, his reports contain no discussion of Mr. Carolino's pre-accident physical or psychological condition and he is seemingly unaware of any of the credibility issues running throughout Mr. Carolino's evidence. On the other hand, Dr. Cretiu was fully aware of Mr. Carolino's pre-accident history and yet concluded that it was "non contributory" to his post-accident chronic pain disorder and anxiety disorder. In my view, this is simply not borne out by the evidence taken as a whole, even including those who felt that Mr. Carolino's symptoms were related to the motor vehicle accident.

Dr. Bacal found that the test data and clinical findings strongly suggested that Mr. Carolino developed a depressive reaction associated with post-traumatic stress symptomatology as a result of the motor vehicle accident. However, he also stated that the various inconsistencies in the medical evidence rendered Mr. Carolino's report "suspect and, at best, unreliable." Dr. Bacal stated that while Mr. Carolino presented with emotional difficulties and would benefit from anti-depressant medication and continued psychiatric therapy, he had "through his own beliefs and perception, and supported by iatrogenic influences [including his receipt of CPP benefits]," concluded that he was disabled. Dr. Bacal also noted Mr. Carolino's "questionable motivation to become actively engaged in his own rehabilitation process" as well as the potentially negative influence of Mrs. Carolino's longstanding disability and receipt of benefit payments.

On the basis of this evidence, I am not satisfied that the motor vehicle accident was a significant contributing factor to Mr. Carolino's subsequent emotional difficulties. While the accident may have contributed to a certain extent, other factors have played a much larger role, including Mr. Carolino's pre-existing and continuing chronic pain disorder, his own self-perception of his condition, his receipt of CPP disability benefits and his wife's disability state. Mr. Carolino has also demonstrated a pattern of misleading health practitioners, the WCB and CPP in relation to the history and nature of his medical condition. The latter two are particularly significant in light of his attempt to obtain disability benefits. In his 1996 report, Dr. Tunks suggested that the inconsistencies in the medical documentation were minor and did not affect Mr. Carolino's credibility. On the basis of all of the evidence (of which Dr. Tunks may not have been aware), I am unable to accept this assertion. Mr. Carolino’s evidence varies significantly on the basic elements of his pre-existing condition, the location and degree of his symptoms and the effect of his alleged ailments on his ability to work. In my view, this must be considered a significant factor in assessing the role of the motor vehicle accident in the development of any subsequent emotional difficulties.

Therefore, on the basis of all of the evidence, I am not satisfied that the motor vehicle accident contributed materially to Mr. Carolino’s alleged physical or psychological problems.

(ii) Disability

However, even assuming that Mr. Carolino’s physical and emotional difficulties are related to the motor vehicle accident, I am not satisfied that they disabled him from returning to his pre-accident employment or a reasonably suitable alternative.

A number of physicians indicated that Mr. Carolino was disabled from returning to gainful employment. However, none of these experts had a full and accurate history of the course and duration of Mr. Carolino's medical condition. For example, Drs. Wright and Potashner had no pre-accident history, no surveillance evidence and were under the impression that Mr. Carolino had not worked at all since the accident.

Dr. Lochead was candid in indicating that the surveillance showed considerably more physical ability than he would have expected based on his examinations of Mr. Carolino. He also did not consider Mr. Carolino's ongoing symptoms of chest pain as significant in relation to the issue of disability. As of early 1992, Dr. Lochead felt that Mr. Carolino was capable of returning to work. However, as correctly pointed out by Dr. Bacal and others, approximately ten months later, with no apparent change in Mr. Carolino’s symptoms, Dr. Lochead endorsed and indeed encouraged Mr. Carolino’s CPP application claiming total disability.²

I prefer the evidence of Drs. Langer and Ameis with respect to the physical aspects of Mr. Carolino's condition, namely, that Mr. Carolino was fully capable of returning to employment. I note that Dr. Langer was the only physician who prepared his report based on the surveillance evidence. I further note that as late as 1995, one of the physicians who examined Mr. Carolino, Dr. Chris, was reporting that Mr. Carolino was permanently disabled from repetitive work, but in relation to his right arm (even though at the hearing, Mr. Carolino continued to maintain that his right arm was not preventing his return to work).

Regarding the specifics of Mr. Carolino's pre-accident employment, there is no indication that it was a heavy, repetitive job requiring prolonged standing or sitting. In fact, Mr. Carolino told Dr. Tallon in early 1992 that his supervisor at Swiss Chalet permitted him to avoid certain tasks in order to accommodate his complaints of pain. Dr. Lochead testified that Mr. Carolino was not disabled from prolonged standing and the evidence also indicates that any disability was largely in relation to working above shoulder height. However, there is no indication that Mr. Carolino’s job required him to raise his arms to this level. In any case, the surveillance shows significant mobility in Mr. Carolino’s neck, shoulders and arms and, in particular, shows him working easily at a wide variety of tasks and recreational activities. This is also at the same time that Mr. Carolino is encouraged by Dr. Lochead to file for total disability CPP benefits and is in fact awarded them. In his application for CPP benefits, Mr. Carolino reports that he is unable to do any lifting or carrying, only a little bending, and needs help putting on his clothes, all of which is in direct conflict with the significant mobility and activity shown in the surveillance tapes.

As discussed earlier, Mr. Carolino's evidence contained various explanations as to his pre- and post-accident working ability. At certain points (most notably to the WCB), Mr. Carolino indicated that he took his pre-accident job at Swiss Chalet because it was a light, non-repetitive job (and lighter than his previous job at Tender Fresh where he hung chickens and turkeys on hooks throughout the day). At other points, he indicated that he left Tender Fresh because the plant had closed down. He provided various conflicting reports of the periods he apparently returned to work following the accident. Some of the doctors concluded that Mr. Carolino was disabled from returning to gainful employment due to his limited education and English language skills. In his examination-in-chief, Mr. Carolino stated that there were no jobs to go back to at Swiss Chalet (an establishment where he was hired by a friend). However, in cross-examination, Mr. Carolino testified that he has not had to look for work since the accident because his job at Swiss Chalet is likely open to him. He indicated that "I have a job at Swiss Chalet." There is no evidence that Mr. Carolino attempted to obtain work but was prevented from doing so by educational or language limitations. I am not satisfied that Mr. Carolino's education and language skills have prevented him from obtaining and/or returning to gainful employment at his pre-accident job or a suitable alternative.

Finally, while Dr. Tunks reported that Mr. Carolino would very likely not resume full- or part-time employment, he testified that this was on the basis of statistical studies of individuals with symptoms similar to Mr. Carolino's and that in examining particular patients, he does not assess disability. He also acknowledged that it would be helpful to know what Mr. Carolino was actually capable of doing and that there are people with Mr. Carolino's condition who function adequately well. Dr. Tunks also indicated that motivation and secondary gain are potential factors in assessing disability and that he would have recommended that Mr. Carolino go back to work. In light of these factors, as well as the nature of Mr. Carolino's work (which was relatively light and adaptable to any of Mr. Carolino's alleged limitations), the inconsistencies in his complaints of pain, the misrepresentations concerning his medical history and working ability, and the significant activity shown in the surveillance tapes, I do not accept Dr. Tunks general conclusion that Mr. Carolino is unemployable.

I am aware that certain practitioners, including Dr. Bacal, recommended supportive psychological therapy for Mr. Carolino. However, I do not find that Mr. Carolino is thereby disabled from returning to work. In my view, the recommendation for further emotional support is in large measure unrelated to the effects of the motor vehicle accident, and is essentially designed to reassure Mr. Carolino that he is physically capable of returning to work and to encourage him in this direction. Again, I find that the nature of Mr. Carolino's work, his significant level of physical activity and his general lack of credibility suggest that any emotional support he may need is not the result of a disabling psychological condition. I accept Dr. Bacal's opinion in this regard that Mr. Carolino does not suffer from an occupationally disabling psychiatric or psychological disorder.

Therefore, on the basis of all of the evidence, I find that Mr. Carolino has not established on a balance of probabilities that, as a result of the motor vehicle accident, he was rendered substantially or continuously disabled from returning to his pre-accident employment or a reasonably suitable alternative.

(iii) Deduction of Canada Pension Plan Benefits and Repayment

In final submissions, Mr. Carolino indicated that he sought payment of the amount of CPP benefits deducted by the Insurer before October 1993. At the outset of the hearing, the issue of the deductibility of CPP benefits had only been framed in relation to weekly income benefits potentially owing to Mr. Carolino beyond the three-year mark. The Insurer responded that Mr. Carolino had raised the matter of pre-156 week CPP deductions too late in the day and that, in any event, he should not be entitled to a payment because, based on all of the evidence, he was never entitled to weekly income benefits. At the commencement of the hearing, the only issue of entitlement identified was in relation to weekly income benefits beyond the 156-week mark. In response to the Insurer's position, Mr. Carolino took the position that I could consider the issue of entitlement before the 156-week mark in order to determine any entitlement to a payment of CPP benefits deducted during that time. If Mr. Carolino was found not to be entitled to weekly income benefits in the initial three-year period, then I would not go on to consider his entitlement to the CPP benefits deducted by the Insurer. The Insurer was content with this arrangement and I agreed to consider the matter on this basis.

Based on my finding that Mr. Carolino was not entitled to benefits in the first 156-week period and in light of the noted arrangement, I am not prepared to address the issue of Mr. Carolino's entitlement to CPP benefits deducted by the Insurer during the 156-week period.

I further find that the Insurer is not entitled to a repayment of $461.20, being the amount by which Mr. Carolino's CPP benefits exceeded his weekly income benefits in the initial three-year period. Pursuant to section 27(3) of the Schedule, Mr. Carolino would have to repay any weekly income benefits to the extent of any payments that were found to be deductible under section 12(4) of the Schedule. In light of my findings that Mr. Carolino was not entitled to benefits within the first three years of the accident and that I would consequently not consider the issue of the deductibility of CPP payments during that time, I am not in a position to determine whether any weekly income benefits are required to be repaid by Mr. Carolino pursuant to the terms of section 27(3) of the Schedule.

Expenses:

Mr. Carolino was not successful in his application. While the arbitration raised legitimate issues for determination, I found serious problems in Mr. Carolino’s evidence including, in particular, his credibility. On this basis, I exercise my discretion to award Mr. Carolino half of his arbitration expenses.

The Insurer claimed its expenses of the arbitration. The proceeding was commenced prior to November 1, 1996, the date on which the Insurance Act was amended to permit Insurers to be awarded their costs in arbitration proceedings. Therefore, even if I were inclined to award the Insurer its expenses, I find I do not have the jurisdiction to do so.

Order:

1. Mr. Carolino is not entitled to weekly income benefits from October 18, 1993.

2. Mr. Carolino is not entitled to weekly income benefits from October 18, 1990 to October 17, 1993.

3. Mr. Carolino is not entitled to the CPP benefits deducted by the Insurer from his weekly income benefits prior to October 18, 1993.

4. The Insurer is not entitled to a repayment of $461.20.

5. Mr. Carolino is entitled to half of his expenses of the arbitration proceeding.

6. The Insurer is not entitled to its expenses of the arbitration proceeding.

October 29, 1998

Eban Bayefsky Arbitrator

Date

APPENDIX

Present at the Hearing:

Applicant:

Agostinho A. Carolino

Mr. Carolino's Representative:

Robert A. Stewart

Barrister and Solicitor

Lloyd's Representatives:

Simon J. Adler

Barrister and Solicitor

Chris Knoll

Student-at-law

Witnesses:

Mr. Carolino

Dr. Lochead

Dr. Tunks

Exhibits:

The parties filed eight exhibits, two consisting of document briefs.

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date, it became the Statutory Accidents Benefits Schedule - Accidents On or Between June 22, 1990 and December 31, 1993. In this decision, the term Schedule will be used to refer to Regulation 672.
2. 2Dr. Lochead's November 20, 1992 report states: "I have encouraged him to proceed with Canada Pension Disability forms which I would be pleased to fill out for him."