Neutral Citation: 1999 ONFSCDRS 192

FSCO A97-001506

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

NICK KOTEY

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

M. Kaye Joachim

Heard:

February 8, 9, 10, May 31 and June 1, 1999, at the Offices of the Financial Services Commission of Ontario inToronto.

Appearances:

Michael D. Smitiuch for Mr. Kotey

Ian D. Kirby for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Nick Kotey, was injured in a motor vehicle accident on August 15, 1993. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated weekly income benefits on May 9, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Kotey applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Kotey entitled to weekly income benefits under subsection 12(2) of the Schedule from May 10, 1996 to August 15, 1996 on the basis that he suffered a substantial inability to perform the essential tasks of his employment?

2. Is Mr. Kotey entitled to weekly income benefits under subsection 12(5)(b) of the Schedule after 156 weeks on the basis that his injury continuously prevents him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience?

3. Is Mr. Kotey entitled to transportation expenses under section 6(d) of the Schedule?

4. Is State Farm entitled to repayment of income replacement benefits under subsection 27(3) of the Schedule, in light of Mr. Kotey's receipt of collateral benefits?

5. Is Mr Kotey entitled to a special award under subsection 282(10) of the Insurance Act?

6. Is Mr. Kotey entitled to expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

7. Is State Farm entitled to expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

Results:

1. Mr. Kotey is entitled to weekly income benefits from May 10, 1996 and ongoing under section 12 of the Schedule.

2. Mr. Kotey is entitled to $1,510 in transportation expenses under section 6 of the Schedule.

3. Mr. Kotey is entitled to interest on overdue benefits under section 24 of the Schedule.

4. State Farm is entitled to repayment of income replacement benefits in the amount of $1,526.28 under section 27 of the Schedule.

5. Mr. Kotey is not entitled to a special award under subsection 282(10) of the Insurance Act.

6. The question of expenses may now be addressed.

I made several preliminary and procedural rulings during the course of the hearing, which are set out in Appendix A to this decision.

EVIDENCE AND ANALYSIS:

1. Ability to Return to Employment:

Background:

Nick Kotey was born and educated in Ghana. He has lived in Canada since 1986. At the time of the accident, he was married with a two-year-old daughter. I find that Mr. Kotey was in good physical shape prior to the accident. He played soccer at the national level in Ghana, and semi-professionally in Switzerland.

Mr. Kotey testified that he was beaten by the military police in Ghana in1986 and that his back was injured during this incident. He also experienced some back pain in 1990 or 1991, when he was trapped under a crane at work. He sought treatment at a clinic near his work, and missed some time from work. Other than that, Mr. Kotey denied any pre-accident medical problems. Despite these incidents, Mr. Kotey was able to work continuously for many years prior to the accident.

Education and Training:

Mr. Kotey completed 14 years of schooling and began a pre-university course in Ghana. He also took some correspondence courses after the accident. In 1997 he took courses in multimedia computer studies and in 1998 he obtained an Electronic Service Technician Certificate. However, he has no work experience in this field. In 1998 he began a computer course at the Devry Institute of Technology. He was unable to maintain the full-time schedule, which required attendance five days per week, five hours per day, and he dropped out of the course after approximately three weeks.²

Employment History:

Mr. Kotey worked as a clerk in his father's store in Ghana for five years, selling cigarettes, hardware and building materials. He worked in a factory in Switzerland for three years, assembling window and door frames. In Canada, he has worked continuously in a series of factory jobs: making umbrellas, sewing tarpaulin, applying melamine to board, working as a machine operator, a tow motor operator, and a metal cutter. During the three and a half years prior to the accident, he worked at two jobs, as a spray painter and as a cook. His annual income from these two jobs was between $46,000 and 47,000.³

Suitable Work:

Although Mr. Kotey has some pre-university education, as well as theoretical training in electronics and computers, his lack of work experience in these areas makes it highly unlikely that he would be competitively employed as an electronics service technician or computer operator. Based on Mr. Kotey's work experience and his pre-accident income, I find that the only work for which he is reasonably suited is full-time factory work, with the opportunity to combine this with part-time restaurant work. In my view, full-time restaurant work would be unlikely to generate the level of income which Mr. Kotey had been earning in the years prior to the accident.

Essential Tasks of Pre-Accident Employment:

Mr. Kotey began working at Canadian Business Machines in April 1988. At the time of the accident, he was working as a line painter. His duties included mixing paint, preparing the spray gun, and spray painting cabinets, shelves and other equipment as they moved past him on the line. The job required continuously standing, twisting, and bending, in order to manoeuvre around the equipment as it passed on the line. The work required concentration and precision. The lifting requirements were light, as the spray gun weighed less than one llb and the paint cans were approximately 5 gallons. His hours of work were from 7:00 a.m. to 4:30 p.m., with a half-hour lunch break and two 15-minute breaks. In addition, he worked approximately 10 hours overtime per week, in the evenings or on Saturdays. His employer confirmed that Mr. Kotey's performance and attendance were good and that he had never filed a workers' compensation claim. This tends to support Mr. Kotey's claim that his bout of back pain in 1990 or 1991 did not cause him any significant absence from work.

In December 1989 Mr. Kotey began working at a second job, as a line cook at a family style restaurant. His duties included cutting and preparing food, and loading supplies. This work also involved continuous standing, some bending and reaching into the fridge, lifting of products weighing between 5 and 20 lbs, and manual dexterity for cutting and rolling. In addition, there was pressure to deal with the high volume of business in a busy restaurant. Mr. Kotey worked approximately 20 hours per week, evenings and weekends.

Thus, the essential requirements of his pre-accident employment involved continuous standing, bending, twisting and precision hand movements. In addition, enormous stamina was required to meet a gruelling work schedule of approximately 70 hours per week, six or seven days per week. Although neither job involved heavy lifting, Mr. Kotey would need to have considerable physical and mental stamina to return to his pre-accident employment duties.

The Accident and its Aftermath:

On August 15, 1993 Mr. Kotey was driving at a speed of approximately 50 kilometres per hour through an intersection when he was struck on the driver's side and his car pushed into a hydro pole. He was taken by ambulance to the hospital. When he arrived at the hospital, he was alert and conscious, although he appeared dazed and did not remember all that happened at the accident. He spent four days at the Mississauga General Hospital, primarily for suspected damage to his heart muscle. This concern proved to be unfounded, and he was discharged with a diagnosis of chest wall injury. After he left the hospital, he experienced headaches, dizziness, pain in his neck, low back, and right shoulder. He also developed a prostate problem which caused him significant pain in his right groin. Since he had no regular family physician at the time, he initially saw Dr. Fred Hung, who had treated him at the hospital. In September 1993, Mr. Kotey began seeing Dr. Rick Law and in March 1994 he switched to Dr. Andrew Otoo. He has remained under Dr. Otoo's care.

Mr. Kotey's medical practitioners initially believed that he suffered simple soft tissue or muscular injuries to his neck and back. They predicted a speedy return to work after a short course of physiotherapy. Unfortunately, Mr. Kotey's injuries did not follow the usual progression of recovery. He continued to complain of headaches, and pain in his right shoulder, neck, back and groin. He has undergone numerous courses of active and passive physiotherapy at various clinics recommended by his family physicians and by the Insurer. He spent almost three years at the Rothbart Whiplash and Headache clinic for management of his pain. He participated in art and music therapy, group and individual psychotherapy, a chronic pain relief workshop, Tai chi and disability management. He received nerve block injections in his neck, back and inguinal area, which gave him temporary relief, but did not provide long-term relief. He was treated by a psychiatrist from July 1996 until the end of 1998 for depression and anxiety.

Various investigations were performed, including x-rays, MRIs, CT myelograms and facet diagnostic blocks. These revealed multiple problems with his cervical and lumbar spine, including severe degenerative disc disease of his cervical spine, reversal of the cervical lordosis, disc bulging at C3-4, disc herniation at C4-5 and C5-6, disc bulging at C6-7, as well as damage to his facet joints at the C2-3, 3-4 and 4-5 levels, a large, central to left-sided L1-2 disc herniation causing compression at the thecal sac centrally, and a small left-sided disc herniation or bulge at L2-3.

At the time of the accident, Mr. Kotey's wife and daughter had been living in Montreal for several months, in order to facilitate the processing of her immigration application. She returned to Toronto and resumed living with him after the accident. However, he experienced difficulties controlling his temper, and his wife moved out periodically for the safety of his daughter. They had another daughter in May 1998. The family was evicted from their apartment in October 1998. At that time his wife took their children and disappeared. He has not seen them since. He moved to another apartment and eventually moved in with a friend because of financial difficulties. Mr. Kotey has never resumed work, although he has taken several correspondence courses and attempted an unsuccessful return to school.

Mr. Kotey testified that he did not believe he was capable of resuming any employment in light of his pain and depression. At the time of the hearing, he was taking painkillers, medication to reduce spasms, anti-depressants, medication to control high blood pressure, and sleeping pills. He does mild stretching and isometric exercises and Tai Chi. He was able to walk for approximately 20 minutes. He has not driven since the accident.

Neck and Back Complaints - Causation:

State Farm submitted that the accident did not play a material contributing role to the onset, aggravation or continuation of Mr. Kotey's neck and back problems. State Farm emphasized that the ambulance and hospital records did not disclose any complaints of neck or low back pain. Dr. Arthur Ameis, a physiatrist, opined that the lack of complaint in the hospital negated the possibility of any connection between the accident and Mr. Kotey's subsequent complaints.

I do not draw the same conclusion. While the hospital records do not reveal any specific complaints of neck and low back pain,⁴ the evidence demonstrates that the accident involved a serious impact, that Mr. Kotey suffered significant bodily pain immediately after the accident, that he was immobilized during his stay in the hospital and given pain killers. Mr. Kotey began complaining to treatment providers of neck and low back pain by early September 1993.⁵ He has had continuous neck and low back pain since. Although the OHIP records show that Mr. Kotey did have x-rays taken of the hip, lumbar spine, sacral spine, sacrum or coccyx area in October 1992, he received no medical treatment in these areas in the year and a half before the accident. More significantly, Mr. Kotey was working a physically demanding 70 hours per week for three and a half years prior to the accident. There is no suggestion that any intervening event occurred between August 15 and early September 1993 which could have caused the neck and low back pain. In my view, the clear inference from the evidence is that the accident made a material contribution to the onset of Mr. Kotey's neck and low back pain.

The more difficult question is whether the physical abnormalities seen on the diagnostic tests were caused by the accident. Dr. R. Lexier, an orthopaedic surgeon, concluded that the multiple spine pathologies were not caused by the accident, because the injuries were too diffuse. Further, he suggested that if the discs had actually herniated in the accident, Mr. Kotey would likely have been complaining of severe pain and numbness at those sites in the hospital. However, he did not have any explanation for the onset of the pain soon after the accident, other than to suggest that perhaps Mr. Kotey's memory was frail, and that it is possible that he had pain prior to the accident. Even if Mr. Kotey had occasional neck or back pain for which he did not seek treatment, his 70-hour work schedule precluded the possibility of any significant or disabling neck or back pain prior to the accident. If the pathologies discovered in 1994 and 1995 were present in Mr. Kotey's spine at the time of the accident I infer that it was the serious motor vehicle accident of August 15, 1993 which made these previously asymptomatic problems, symptomatic and disabling.⁶

Correlation Between Disc Pathologies and Clinical Symptoms:

Another complicating factor in this case is that Mr. Kotey's low back complaints did not correlate initially with the left-sided disc herniation at L1-2 and disc bulge at L2-3. These pathologies were first revealed by an MRI in October 1994. At that time, Mr. Kotey was complaining of pain radiating into his right leg.⁷ Accordingly, several specialists warned against surgery to relieve the discs.⁸

While the lack of correlation between the clinical symptoms and the location of the pathology may have contra-indicated surgery, the test results provide an organic basis for Mr. Kotey's complaints of low back pain. Dr. Rothbart, a trained anaesthesiologist with considerable expertise in the management of chronic pain, testified that disc bulging likely causes the sac surrounding the disc to tear. Thus, bulging can cause pain at the site, even though the bulge may not impinge on the nerve and cause radiating pain.

As early as February 1994, a physiotherapist suspected instability in Mr. Kotey's neck at the C1-2 level.⁹ X-rays taken in March 1994 revealed severe degenerative changes in the lower half of the cervical spine. A facet diagnostic block of the C2-3, C3-4 and C4-5 levels, performed in November 1994, indicated that Mr. Kotey may have damage in his cervical facets.¹⁰ A CT myelogram of the cervical spine in January 1995 revealed disc bulging at C3-4, C5-6, and C6-7 and a disc herniation at C4-5, without nerve root impingement.¹¹ I find that the disc bulges are consistent with Mr. Kotey's constant complaints of severe neck pain and limited range of motion.

I note as well that many examining physicians have noted swelling and muscle spasms in Mr. Kotey's neck and back.¹²

Chronic Pain and Depression:

The medical records chart the development of chronic pain and depression. Mr. Kotey's complaints of neck and low back pain and severely limited range of motion have been constant and unremitting since early September 1993.¹³ Soon after the accident, he began complaining of sleep difficulties, dizziness, anxiety, and depression.¹⁴ A chronic pain assessment carried out by Health Recovery Clinic at the request of the Insurer in August 1994 noted that Mr. Kotey was limited because of pain, and exhibited symptoms of clinical depression. He was treated by Dr. P. C. Miller, a psychotherapist, from August 1994 to February 1996, for depression.¹⁵ He has undergone continuous treatment on an almost daily basis, in an effort to obtain relief from his pain. The nerve blocks involved painful injections in the neck and back, which he initially attempted to undergo without sedation. He was eventually discharged from the Whiplash and Headache clinic in June 1997 after three years of treatment, because they felt they could not help him any more. He began psychiatric treatment with Dr. R. Kakar in July 1996.¹⁶ Dr. Kakar testified that Mr. Kotey suffered from depression, of moderate to severe intensity. He prescribed anti-depressants and provided weekly psychiatric counselling for over two years. Dr. Kakar testified that Mr. Kotey's chronic pain exacerbated his depression, which in turn exacerbated his pain. He was caught in a vicious cycle, in which his physical and emotional symptoms fed into each other. Over time, Mr. Kotey's condition improved slightly. By December 1998, when Mr. Kotey stopped treatment, Dr. Kakar described Mr. Kotey as moderately depressed.

State Farm submitted that several of the medical examiners who examined Mr. Kotey on its behalf found no clinical evidence of neurological or musculoskeletal impairment.¹⁷ They also noted signs of pain magnification and exaggerations. Their findings are not inconsistent with the development of a chronic pain syndrome. As noted in the AMA Guides to the Evaluation of Permanent Impairment:

Chronic pain is a self-sustaining, self-reinforcing, and self-regenerating process. It is not a symptom of an underlying acute somatic injury, but rather a destructive illness in its own right. It is an illness of the whole person and not a disease caused by the pathologic state of an organ system. Chronic pain is persistent, long-lived, and progressive. Pain perception is markedly enhanced. Pain-related behavior becomes mal-adaptive and grossly disproportional to any underlying noxious stimulus, which usually has healed and no longer serves as an underlying pain generator.

Chronic pain that is not recognized and properly treated results in a deterioration of coping mechanisms. Under such circumstances, limitations of functional capacity are apt to occur. The patient's maladaptive behavior may have medical social and economic consequences that greatly outweigh any somatic components of the illness. These consequences may include despair, alienation from family and society, loss of job, isolation, invalidism, and suicidal thoughts.

State Farm submitted that Mr. Kotey's evidence of disabling pain should not be accepted because he is not a credible witness. I accept that Mr. Kotey is not a reliable historian with respect to when various symptoms first appeared.¹⁸ However, this does not detract significantly from his claim, since the documentary evidence establishes the dates and onset of symptoms. A witness may be unreliable with respect to such matters, and still give credible testimony with respect to his pain symptoms.

State Farm submitted that Mr. Kotey demonstrated a tendency to "doctor-shop" by switching from Dr. Hung to Dr. Law to Dr. Otoo, and switching from Dr. Miller to Dr. Kakar. In my view, this change of doctors is also consistent with Mr. Kotey's search for someone who could provide him with pain relief.

State Farm submitted that Mr. Kotey's failure to follow through with scheduled surgery in 1998 and again in February 1999 was evidence that Mr. Kotey was not experiencing the level of pain he claimed. I note that the 1998 surgery was cancelled because the surgeon moved to Windsor.¹⁹The February 1999 surgery was scheduled to take place in Windsor, and there was evidence that Mr. Kotey was concerned about post-surgical care. I do not interpret Mr. Kotey's failure to follow through with the surgery as negating his complaints of pain.

Several medical examiners noted that Mr. Kotey was a muscular individual despite his claims of chronic pain and lack of activity. The evidence suggests that Mr. Kotey was an extremely muscular individual before the accident and that he lost a significant amount of weight after the accident.²⁰ I am satisfied that the weight loss represented the loss of this excess muscle bulk but still left him with a regular "muscular" build.²¹ Although the Insurer initiated surveillance of Mr. Kotey, it did not present any evidence demonstrating that Mr. Kotey was engaging in any activities contrary to his stated limitations.

The Insurer's medical examiners noted findings during their examinations that State Farm submitted were suggestive of malingering, including inconsistent responses to formal versus informal testing, inconsistent results between tests designed to elicit consistent responses, and neurologically impossible responses.

I must balance these findings against Mr. Kotey's pre-accident work history, his unremitting complaints of pain since the accident, the almost daily, sometimes painful, treatments he has undergone, the numerous medical practitioners who accepted the genuineness of Mr. Kotey's complaints,²² the objective signs of injury to Mr. Kotey's neck and back, his lack of activity, and the deterioration of his mental health and family life. In my view, the preponderance of evidence negates an inference of deliberate malingering and favours a finding that Mr. Kotey suffers significant, disabling pain in his neck and back, as well as disabling depression.

Medical and Vocational Evidence:

Dr. Otoo, Mr. Kotey's family physician, testified that the level of pain Mr. Kotey expressed after the accident would have precluded him from returning to his work as a spray painter or cook. While Dr. Otoo believed the lifting requirements of Mr. Kotey's jobs were heavier than they actually were, this was not the sole basis for his opinion on disability. His opinion was based primarily on Mr. Kotey's pain complaints, not on his lifting ability.

Dr. Rothbart testified that during his three years of treatment at the Whiplash and Headache Clinic, Mr. Kotey's level of pain was such that he could not do much in the way of physical activity. In his report, Dr. Rothbart opined that Mr. Kotey would not be able to return to his job as a spray painter or cook. I note that Dr. Rothbart was under the mistaken impression that Mr. Kotey spray painted cars, while lying underneath them. However, I do not find that this significantly undermines the basis for his opinion that Mr. Kotey was unable to work because of pain. Dr. Rothbart further confirmed that in light of Mr. Kotey's severe pain, he would be unable to do any work for any length of time.

Dr. Kakar testified that Mr. Kotey was not capable of performing more than the minimal functions of daily living. As a result of his emotional state, he lacks the energy and motivation to return to work.

Carolyn Greene, an occupational therapist with expertise in vocational assessment, concluded that Mr. Kotey was unlikely to be able to engage in any competitive employment, because his tolerances for various body postures and productivity were so low.

I find that Mr. Kotey's pain and depression prevented him from returning to the gruelling 70- hour work schedule required of his two pre-accident jobs. I further conclude that his pain and depression have continuously prevented him from returning to any type of full-time factory work for which he is reasonably suited by his education, training and experience, since May 1996. Accordingly he is entitled to weekly income benefits from May 1996 and ongoing, plus interest.

2. Transportation Expenses:²³

Mr. Kotey submitted a claim for transportation expenses in the amount of $1,618 to cover the cost of taxi fares taken to medical treatments. The Insurer paid $108 in transportation expenses representing the cost of public transportation.

In September 1996, Dr. Kakar provided a brief written note recommending that Mr. Kotey travel by taxi cab. In his testimony, Dr. Kakar explained that Mr. Kotey could not travel by public transit because of panic attacks and fear of going out. Eventually the panic attacks subsided, and Dr. Kakar testified that a couple of months before Mr. Kotey ceased treatment in December 1998, he was likely able to travel by public transportation.

The claimed expenses were incurred before Mr. Kotey's condition had improved. I conclude that the cost of travelling by taxi for medical treatment was a reasonable transportation expense, in light of Mr. Kotey's difficulties travelling by public transit. Accordingly, Mr. Kotey is entitled to $1,510 ($1,618 minus $108) in transportation expenses.

3. Repayment of Weekly Income Benefits:

Mr. Kotey received long-term disability benefits from Imperial Life at the rate of $1,398.61 per month for the period December 13, 1993 to July 25, 1995 ($323.01 per week for 84 weeks).²⁴He received most of the collateral benefits in a lump sum in October 1995, at which point he promptly notified State Farm. During that same period he was also paid weekly income benefits by the Insurer at the maximum rate of $600 per week.

Under subsection 12(4) of the Schedule, an insurer is entitled to deduct payments for loss of income from 80 percent of the insured's gross weekly income. Mr. Kotey's gross weekly income from his two jobs (based on the Employer's Confirmation of Income) was $1,119.51. In addition, he received tips from his position at the Lonestar Restaurant, which should be included in his gross weekly income. Accordingly, I have added $11.54 per week²⁵ to Mr. Kotey's income for a gross weekly income of $1,131.05. Eighty percent of that amount is $904.84.

Deducting $323.01 from $904.84 results in a weekly benefit of $581.83. Mr. Kotey was paid $600 during those 84 weeks mentioned above, resulting in a weekly overpayment of $18.17 and a total overpayment of $1,526.28.

Mr. Kotey argued that he was not responsible for the overpayment and therefore is not required to make any repayment. Subsection 27(1) of the Schedule provides for repayment of benefits in cases of error or fraud, and many arbitrators have held that insureds must only repay benefits if they are responsible for the error. That principle does not assist Mr. Kotey in this case. The Insurer is seeking repayment under subsection 27(3) which provides that "a person must repay to the insurer any benefit received under sections 12 and 13 to the extent of any payments received by the person that are deductible from benefits under subsection 12(4) or 13(3)." Subsection 27(3) does not require that the insured be responsible for the overpayment.

Accordingly I conclude that Mr. Kotey must repay $1,526.28 in weekly income benefits under subsection 27(3).

Special Award:

Mr. Kotey submitted that State Farm's decision to terminate benefits in 1996 was unreasonable. At the time of the termination, several medical examiners selected by the Insurer were of the opinion that Mr. Kotey's physical injuries from the motor vehicle accident had healed. While there was evidence available to State Farm supporting Mr. Kotey's claim of ongoing disability because of chronic pain, it nonetheless had some legitimate concerns about the consistency of Mr. Kotey's symptoms. Dr. Kakar's psychiatric report, confirming depression, an independent ground of entitlement, was not made available until shortly before the arbitration proceedings.

I am not satisfied that State Farm's decision to terminate benefits in 1996 was unreasonable. Mr. Kotey is not entitled to a special award.

EXPENSES:

The question of expenses was deferred until all other issues in dispute were decided. Therefore, the issue of Mr. Kotey's expenses of this arbitration proceeding may now be addressed if the parties are unable to resolve this issue between themeselves.

October 4, 1999

M. Kaye Joachim

Arbitrator

Date

Appendix A

Preliminary and Procedural Rulings:

Request for an Adjournment and Production of Documents:

At the commencement of the hearing, State Farm requested an adjournment in order to obtain production of an OHIP summary, the clinical records of the family physician prior to the accident, and the ambulance call report.

State Farm first requested production of these documents in January 1998. The parties agreed at the pre-hearing on January 20, 1998 to exchange these productions. State Farm followed up on these requests on September 3 and October 15, 1998. However, no steps were taken to seek an order for production from the pre-hearing arbitrator. State Farm submitted that it only became aware that Mr. Kotey had suffered a bout of back pain in 1990 or 1991 shortly before the hearing, and these pre-accident medical records were crucial to the presentation of its case, since the cause of the back injury was an issue in the proceeding.

Mr. Kotey opposed the adjournment request. He did not have a regular family physician at the time of the accident, and therefore the requested clinical records did not exist. His counsel had initially requested the OHIP summary in March 1998, but had failed to follow up this request. As a result, the OHIP summary had not yet been received at the commencement of these proceedings. Mr. Kotey submitted that the Ambulance Call Report was irrelevant.

In my view, Mr. Kotey's failure to take steps to obtain the OHIP summary and the Ambulance Call Report in a timely fashion was unacceptable. However, the relevance of these documents should have been apparent to State Farm from the outset. It had an obligation to pursue other remedies, such as a pre-hearing production order, when it became apparent that the requested documents were not being provided in a timely fashion. In light of its failure to do so, I declined to grant an adjournment, but fashioned a remedy: an order to disclose the documents at the earliest opportunity, an opportunity to recall Mr. Kotey and other witnesses, if necessary, and the deferral of its witnesses until after receipt of the documents.

I also ordered Mr. Kotey to produce his refugee file (including medical documents), Dr. Andrew Otoo's clinical notes and records for any treatment of Mr. Kotey in the 1980s, and the clinical notes and records from the medical clinic in Malton where Mr. Kotey was treated in 1990 or 1991. At various times, Mr. Kotey has also been known as Nik Quartey or Sampson Kortey. He was ordered to produce the information with respect to all these names.

When the hearing resumed in May 1999 State Farm submitted that the productions were still incomplete. An OHIP summary in the name of Nick Kotey was produced, from January 30, 1992, rather than from 1990, because the Ministry of Health does not keep records for more than seven years. State Farm submitted that had Mr. Kotey disclosed the 1990 or 1991 incident earlier, and obtained the OHIP records earlier, they would have been available for the 1990 period. No OHIP information in respect of Nik Quartey or Sampson Kortey was produced. No medical information from the refugee file was produced. Dr. Otoo's clinical notes and records from the 1980s and the records from the Malton medical clinic were not produced. Rather than requesting a further adjournment, State Farm submitted that an adverse inference should be drawn with respect to the failure to obtain and produce the requested documents.

I am satisfied that Mr. Kotey, through his counsel, made reasonable efforts to obtain the material requested. Mr. Kotey was unable to recall the name or address of the medical clinic in Malton. A search by his counsel failed to locate the clinic. Dr. Otoo was unable to locate any records pertaining to Mr. Kotey in the 1980s. Although counsel requested Mr. Kotey's entire refugee file, no medical information was provided in the file. Although Mr. Kotey's counsel requested information in respect of "Nick Kotey" (also known as Sampson Kortey or Nik Quartey), the Ministry of Health did not confirm the absence of records under the alternative names. Nonetheless, I am prepared to draw the inference, from the exchange of correspondence and Mr. Kotey's pre-accident work history, that no summary exists for Sampson Kortey or Nick Quartey. I find it highly unlikely that Mr. Kotey would have set up three separate OHIP billing numbers under three separate names in order to hide an extensive medical history.

Although Mr. Kotey's failure to produce the OHIP summary earlier raises an inference that those documents may contain information detrimental to his claim, I am satisfied, based on the preponderance of evidence, that this is not the case. For the reasons set out in the decision, I am satisfied that Mr. Kotey was in good physical and mental health during the three years prior to the accident. Although the absence of the OHIP records from 1990 and 1991 is unfortunate, I am satisfied that State Farm has not been unduly prejudiced by its absence.

Summons to Produce Financial Records of a Medical Practitioner:

Mr. Kotey's counsel served a summons on Dr. Arthur Ameis the morning he was scheduled to testify on behalf of the Insurer, requiring him to bring his financial records relating to his medical practice. Counsel argued that he intended to demonstrate that Dr. Ameis was biased against insureds. He argued that production of Dr. Ameis' financial records was required in order to establish that a substantial portion of Dr. Ameis' income is derived from medico-legal opinions requested by insurance companies. I ruled that counsel would be permitted to cross examine Dr. Ameis with respect to these matters, but that he was not entitled to production of Dr. Ameis' financial records. I quashed the summons for the following reasons. The primary issue in this proceeding is Mr. Kotey's entitlement to weekly benefits. He has been examined by many medical practitioners, at the request of his own doctors and at the request of State Farm. These proceedings would become unduly prolonged if every medical practitioner were required to produce detailed financial information of the kind requested here. These allegations of general bias, as opposed to a specific bias against Mr. Kotey, are remote from the entitlement issues before me. I concluded that the probative value of the documents did not justify the requested production.

Neutral Citation: 1999 ONFSCDRS 192

FSCO A97-001506

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

NICK KOTEY

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. State Farm shall pay Mr. Kotey weekly income benefits from May 10, 1996 and ongoing.

2. State Farm shall pay Mr. Kotey $1,510 in transportation expenses.

3. State Farm shall pay interest on overdue benefits in accordance with section 24 of the Schedule.

4. Mr. Kotey shall repay State Farm weekly income benefits in the amount of $1,526.28.

October 4, 1999

M. Kaye Joachim

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
2. 2Mr. Kotey testified that he was willing to continue his studies part-time, but that his OSAP funding was only available for full-time studies.
3. 3The Employer's Confirmation of Income from the Lonestar Restaurant confirmed that he began working as a fryer cook in December 1989. The Employer's Confirmation of Income from Canadian Business Machines confirmed that he began working as a painter in April 1988. Mr. Kotey's 1990 income tax returns confirm an annual income from these two jobs of $46,000 and his 1992 income tax returns confirm a combined income of $47,000. The 1991 income tax returns were unavailable, but there was no evidence to suggest that it would have been significantly different in that year.
4. 4The Applicant argued that the references to back pain in the nursing and physiotherapy records could refer to low back pain. However, when viewed in context, I conclude that these notations refer to mid-back pain.
5. 5September 8, 1993, Report from Dixie Physiotherapy to Dr. Hung. The physiotherapist noted that Mr. Kotey presented with complaints of right shoulder, left chest wall, low back and neck pain. The discharge letter dated June 2, 1994, indicated that treatment began on September 3, 1993. I conclude that when Mr. Kotey began physiotherapy on September 3, 1993 he made complaints of low back and neck pain.
6. 6This view is supported by Dr. Peter Rothbart's Report of January 27, 1999 and Dr. I. H. Lieberman's Report of July 20, 1995.
7. 7Although Mr. Kotey suggested at the hearing that he did make complaints of pain radiating into his left leg early on, I am satisfied that the numerous specialists who examined him could not all have failed to record this complaint. Mr. Kotey completed his own pain diagram in August 1994 and noted pain radiating into his right leg (Exhibit 3, Tab 30). Mr. Kotey first began complaining of left-sided back pain in December 1995 (Progress Report, Dr. G. Ashby, December 27, 1995, Exhibit 5, Tab. 40), and radiation into the left leg in February 1996 (Progress Report, Dr. G. Ashby, February 11, 1996, Exhibit 5, Tab. 40)
8. 8Dr. P. Rothbart disagreed with these specialists and continued to recommend that Mr. Kotey seek out further opinions in an effort to find a surgeon who would be willing to perform surgery on his neck and back. Dr. A. Otoo supported this approach. As well, Dr. L. J. Kadish, who initially stated in October 1993 that Mr. Kotey would never require surgery, subsequently conceded that in view of Mr. Kotey's failure to respond to conservative measures, he might benefit from surgery. Eventually he found a neurosurgeon who was willing to perform the surgery, which was scheduled to take place in Windsor in February 1999. For reasons discussed below, the surgery did not take place.
9. 9Exhibit 6, Tab 3, Report of D. Kirby, Dixie Sports and Physiotherapy, March 14, 1994 and Exhibit 5, Tab 11, Report of D. Kirby, Dixie Sports and Physiotherapy, March 16, 1994.
10. 10Exhibit 5, Tab 40, Dr. M. C. Chiu, November 2, 1994. Exhibit 5, Tab 18, Dr. Rothbart, December 5, 1994. They cannot do a facet diagnostic block at the C0-1 and C1-2 levels. Exhibit 5, Tab 18, Dr. Rothbart, December 9, 1994. Dr. Rothbart testified that a facet diagnostic test is conducted by inserting zylocaine into the facet joints. If the patient reports short-term pain relief, this test is considered 73 percent reliable as an indication of facet damage.
11. 11These results were confirmed again by an MRI in November 1997 (Exhibit 3, Tab 36)
12. 12Exhibit 4, Tab 9, Dr. L. J. Kadish, October 20, 1993; Exhibit 5, Tab 38, Wellesley Hospital Emergency Record, December 20, 1993; Exhibit 5, Tab 40, Clinical Notes and Records of Whiplash & Headache Clinic (July 1994 to June 1997); Exhibit 3, Tab 36, Dr. S. Sriharan, October 2, 1997.
13. 13Mr. Kotey's right groin pain, which was noted as early as December 1993 was eventually diagnosed as a prostate problem and was treated with medication. Applicant's counsel did not argue that this condition was related to the accident. Although this pain likely contributed to the ultimate development of Mr. Kotey's chronic pain, I am satisfied that the neck and low back pain remained the significant contributing factors to his pain syndrome.
14. 14Exhibit 5, Tab 38, Clinical Notes and Records of Dr. R. Law.
15. 15Records of the Rothbart Whiplash and Headache Clinic, Exhibit 5, Tab. 40. Dr. P. C. Miller notes that Mr. Kotey was under a great deal of stress because of the loss of his job, financial difficulties and marital problems. Throughout his reports, Dr. Miller notes that Mr. Kotey's marital problems were contributing to his depression. I am satisfied that the accident, and the resulting pain and financial difficulties remained a material contributing factor to Mr. Kotey's depression.
16. 16The Insurer argued that Dr. Kakar's evidence should be discounted because the referral letter from Applicant's counsel specifically advised him that his opinion would affect whether Mr. Kotey would receive benefits. In my view, the reference to benefits was intended to influence Dr. Kakar in giving an opinion favourable to the Applicant, and hence, inappropriate. However, it did not significantly lessen the weight I gave to Dr. Kakar's opinion. All medical practitioners who treat patients following an injury which may involve compensation are aware that they may be required to provide a medico-legal opinion. Those who provide medico-legal reports for arbitration or court proceedings are aware that the report will be considered in assessing the person's claim.
17. 17In November 1993, Dr. G. Moddel, a neurologist, concluded that there was no neurological reason preventing Mr. Kotey from returning to work. In April 1994, Dr. R. Lexier, an orthopaedic surgeon, concluded that there was no orthopaedic reason preventing Mr. Kotey from returning to work. Their examinations were conducted prior to the tests which revealed pathologies in Mr. Kotey's neck and back. After being advised of the test results, Dr. Lexier remained unconvinced that the pathologies were related to the accident. Dr. P. Rush, a rheumatologist and physiatrist who examined Mr. Kotey in July 1995, at the request of another insurance company, did review the CT and MRI tests at the time of his examination. He concluded that Mr. Kotey did not display any significant neuromusculoskeletal impairment. Dr. A. Ameis, a physiatrist, who examined Mr. Kotey in February 1996, concluded from his review of the hospital records, that Mr. Kotey did not sustain an injury to his neck and back at the time of the accident. He also found no physical basis for Mr. Kotey's complaints.
18. 18For example, Mr. Kotey testified that he complained of neck and low back pain in the hospital. I prefer the documented medical records which do not reveal such complaints until early September 1993. Mr. Kotey insisted that he had experienced pain radiating into his left leg since the time of the accident. However, I prefer the numerous medical records which indicate that Mr. Kotey did not complain of pain radiating into his left leg until 1996.
19. 19Exhibit 5, Tab. 27, Report of Dr. S. Sriharan, November 16, 1998.
20. 20During Dr. Lexier's examination on April 2, 1994, he noted that Mr. Kotey was 5'7", and weighed 194.5 lbs. By the time of Dr. Ameis' examination in February 1996, he weighed 160 lbs, a loss of 34.5 lbs over two years. Dr. Rothbart also frequently noted Mr. Kotey's weight loss.
21. 21At 5'7", and 194 lbs, Mr. Kotey was either very muscular or obese. Since no examiner has ever commented that Mr. Kotey was obese, I conclude that Mr. Kotey was extremely muscular at the time of the accident, rather than obese. Thus, the weight loss Mr. Kotey experienced was likely the loss of this muscle bulk, reducing him to the ordinary muscular frame which many examiners subsequently noted.
22. 22The examiners who suspected that the inconsistencies noted during their examinations were suggestive of malingering, (Dr. Moddel, Dr. Lexier, Dr. Ameis, Dr. Rush) had each examined Mr. Kotey on one occasion. The medical practitioners who treated Mr. Kotey over a long period of time (Dr. Rothbart, Dr. Otoo, Dr. Kakar), did not doubt the genuineness of his pain. The vocational rehabilitation consultants retained by the Insurer initially suspected malingering, but after working with Mr. Kotey over time "now have the opposite point of view. We suspect the man was always motivated to get better, but avoided situations which caused pain." (Exhibit 6, Tab 6).
23. 23Although the pre-hearing letter dated January 21, 1998 identifies entitlement to medication expenses as an issue in dispute, the parties did not address any arguments to this issue.
24. 24$1,398.61 per month, divided by 4.33 weeks equals $323.01 per week.
25. 25His employer estimated he received approximately $150 in tip income every three months. I extrapolated the three months tip income of $150 every three months to $600 annually ($150 x 4 sets of three months). $600 divided by 52 weeks is $11.54 per week in tips.