Neutral Citation: 1999 ONFSCDRS 221

FSCO A96-000989

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

RAFFAELE RUFFO

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Susan Sapin

Heard: February 10, 11, March 25, June 18, September 23, October 7 November 23, 24, 25, 26 and December 1 and 2, 1998, at the Financial Services Commission of Ontario, Toronto

Appearances: Enio Zeppieri for Mr. Ruffo Sherree R. Mosoff for Liberty Mutual Insurance Company

Issues:

The Applicant, Raffaele Ruffo, was injured in a motor vehicle accident on April 14, 1994. Liberty Mutual Insurance Company ("Liberty Mutual") paid him weekly income replacement benefits under the Schedule¹ until December 22, 1995. Mr. Ruffo disputed the termination of weekly benefits. Mediation failed to resolve this dispute and Mr. Ruffo 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. Ruffo entitled to ongoing weekly income replacement benefits from December 23, 1995?

2. Is Mr. Ruffo entitled to the cost of a recliner chair pursuant to subsection 40(1)(a) of the Schedule or to expenses for chiropractic treatments pursuant to subsection 36(1)(b)?

3. Is Mr. Ruffo entitled to interest?

4. Is Mr. Ruffo entitled to his expenses of the arbitration?

Result:

1. Mr. Ruffo is entitled to ongoing weekly income replacement benefits from December 23, 1995.

2. Mr. Ruffo is not entitled to the cost of a recliner chair or to the expenses of chiropractic treatments provided by Dr. Antonio Taverniti after May 31, 1996.

3. Mr. Ruffo is entitled to interest on overdue payments under section 68 of the Schedule.

4. Mr. Ruffo is entitled to his expenses of the arbitration save for the costs associated with attendance on October 7, 1998.

EVIDENCE AND ANALYSIS:

Background

Mr. Ruffo was born in a small town in Sicily in 1943. He attended school there until Grade 5 and apprenticed as a tailor from the age of 12, becoming skilled at repairs and alterations. He did this work, as well as cabinet-making and other work, in Sicily and Milan prior to immigrating to Canada in 1967, where he found work sewing in various Toronto clothing factories. For several years in the 1980s he made a good living doing repairs and alterations for major menswear chains. When that work was contracted out he opened a small tailoring shop, as "Professore Raffaele." This enterprise lasted about 18 months and closed around 1990 when work fell off due to the recession.

After that, Mr. Ruffo took what employment came along. He worked in construction, delivered coffee and did odd jobs. His most recent work prior to the accident was for eight months as a maintenance person for two apartment buildings owned by a friend. He was laid off from this job in October 1993, as the buildings were being renovated, and he was due to return in April 1994, when the accident occurred. Mr. Ruffo had received unemployment insurance benefits for the four months prior to the accident. He did not return to work after the accident. These facts were not disputed by the Insurer.

Accident

Mr. Ruffo was making a U-turn on St. Clair Avenue West when his car was hit on the passenger side by an oncoming car. He testified that the back of his seat broke and he hit the left side of his head and trunk on the interior of the car. The car was towed to either a collision centre or a police station and Mr. Ruffo drove a rental car home. There was no evidence to indicate that this was a serious accident or that Mr. Ruffo had suffered a head injury.

Eligibility for benefits

To be entitled to income replacement benefits under paragraph 7(1)2 of the Schedule, Mr. Ruffo must establish on a balance of probabilities that the accident caused an impairment which renders him substantially unable to perform the essential tasks of his maintenance job within two years of the accident.

Essential tasks

Mr. Ruffo provided few details about his essential tasks as an apartment building maintenance person. I rely on the undisputed description of his duties and the physical demands of the job as set out in the Job Analysis Form Worksheet dated July 5, 1994,² prepared by Crawford & Company Healthcare Management in consultation with Mr. Ruffo's employer. I find Mr. Ruffo's essential tasks are light internal and external maintenance of two three-storey apartment buildings. He changed light bulbs, swept, mopped and fixed floors, and did small painting and cosmetic jobs for eight hours a day, five days a week. The job entailed frequent standing, walking and stooping. He rarely needed to kneel, crouch, sit, twist, balance or climb. The heaviest item lifted was a ladder weighing between 10 to 25 pounds, once a week. He took out garbage once a week but there was no evidence as to the number or weight of the containers, the distance he pulled them, the number of apartments in the building, whether there was an elevator, or the frequency or duration of each task.

Mr. Ruffo's evidence

Mr. Ruffo claims that he is entitled to ongoing income replacement benefits because he cannot perform the essential tasks of his job due to chronic pain and depression resulting from his accident-related injuries.

Mr. Ruffo testified that he did not feel pain until the day after the accident. He first saw his family doctor, Dr. Nicholas Ciurria, on April 20, six days after the accident. He complained of worsening pain in his neck, back and side, which he described as "cramps," headaches, difficulty sleeping and anxiety. Dr. Ciurria testified that Mr. Ruffo had spasms in his neck and limitation of movement and pain radiating down his back. There was no bruising to the head. He prescribed Tylenol 3 and 5 mg of Diazepam to help Mr. Ruffo relax, and a week later referred him to Dr. Antonio Taverniti, a chiropractor, for treatment.

Mr. Ruffo testified that he suffered and still suffers from frequent headaches, memory, concentration and sleep difficulties. He stated that his current problems are obvious for anyone to see, that he has "cramps" in his abdomen, neck, shoulders, back and sides and that he cannot find a comfortable position in which to sit, sleep or lie. He testified that bending forward or standing causes pain and "cramps." He has trouble raising his arms. He said that he cannot "get going" much before noon because of pain and stiffness. He must shave very slowly and carefully in order to avoid bringing on pain.

In a chronic pain case such as this one, where there is little objective medical evidence to support any continuing physical disability resulting from the accident or to substantiate the level of pain claimed, the credibility of the applicant is a crucial factor.³

It became evident during Mr. Ruffo's testimony that he was so poor a historian that much of his evidence was neither reliable nor helpful. He was at times vague, evasive and unresponsive even to direct, simple or uncontentious questions. Both counsel had to repeat or simplify more complex or abstract questions. He could not recall dates, times, locations or the purpose of visits to physicians unless prompted, or what was discussed, or the names or locations of places he had worked since coming to Canada in 1967, or how long he had worked at each. He did not appear to understand many of the questions, or why it was necessary to answer them. Often his answers were completely nonsensical, or were conveyed with a shrug, a gesture or a facial expression.

Mr. Ruffo testified in his native Sicilian dialect through a series of Italian interpreters, some more competent than others. I am satisfied, however, that the problems inherent in his testimony did not stem from the interpretation services provided.

Mr. Ruffo resented that his credibility was being questioned. He was argumentative and defensive. He disagreed with much of the medical evidence put to him. He was unable to control his feelings of anger and frustration towards the Insurer or with repeated questions that he felt he had already answered or were "stupid," or to which, in his opinion, the answers were obvious. There were frequent outbursts of temper, for which he apologised. On one occasion he burst into tears. A proud man, this clearly embarrassed him. He interjected when other witnesses testified. He tired visibly when he testified and it was clear that he would agree to suggestions or answer yes or no to questions simply to get them over with. At one point the hearing was adjourned at his counsel's request because Mr. Ruffo was not making any sense, possibly due to medication he had taken.

It was evident from Mr. Ruffo's irritability and difficulty in controlling his emotions and his groaning, sighing, grimacing, stretching and pacing that he was in genuine emotional and physical distress during the hearing.

Part way through Mr. Ruffo's cross-examination, Mr. Zeppieri argued that Mr. Ruffo's psychological state had so deteriorated that his client was not competent to continue to be cross-examined.⁴ The hearing was adjourned and Mr. Ruffo was assessed by mental health professionals for both sides. Mr. Zeppieri eventually conceded that Mr. Ruffo was, in fact, competent to continue his testimony, with certain accommodations suggested by the psychologists to minimize the stress to Mr. Ruffo. Accordingly, cross-examination resumed five months later, on November 23, 1998.⁵

These expert reports will be discussed more fully below, under "medical evidence." However, I did find them to be very helpful in understanding Mr. Ruffo's behaviour during his testimony, particularly Dr. Ilacqua's opinion that,

Mr. Ruffo appears to be unable to cope with the current level of emotional distress, and he is likely to deteriorate emotionally and cognitively when in unfamiliar or stressful situations, such as the current legal proceedings. In such situations, Mr. Ruffo is likely to digress, to become overly emotional or aggressive or attempt to end the stressful situation in the fastest possible manner, independently of the consequences and implications that his actions may have.⁶

I find that Dr. Ilacqua's statement explains Mr. Ruffo's behaviour at the hearing and deficiencies in his testimony, and that it applies equally to behaviour consistently displayed by Mr. Ruffo in his dealings with medical and other professionals. As explained below, Dr. Ilacqua's opinion is supported by other evidence. I find that the evidence shows Mr. Ruffo's behaviour to be characteristic of his personality and his emotional condition after the accident, and, in the unique circumstances of this case, does not indicate any lack of credibility on his part.

Disability

Medical evidence

As stated above, this is a chronic pain case, with few objective findings to support any physical disability or to account for Mr. Ruffo's pain complaints. However, I find Mr. Ruffo's pain complaints to be genuine and that the medical evidence is clear that he suffers from a chronic pain condition with a significant psychological component that disables him from his maintenance work.

There is no question that Mr. Ruffo sustained soft tissue injuries to his neck and low back in the motor vehicle accident and that they accounted for Mr. Ruffo's pain and headaches.⁷ Apart from tenderness and restricted range of motion there were few objective findings. In July 1994, both Dr. G. Moddel and Dr. E. White noted that Mr. Ruffo was depressed and withdrawn and that he had significant difficulty sleeping, for which he took Luvox, an antidepressant, at bedtime. Dr. White reported that there appeared to be a significant post-traumatic psychological component to Mr. Ruffo's injuries.

X-rays taken in April and October 1995 and January 1996 revealed a normal cervical and lumbosacral spine, except for a "slight scoliosis concave to the right suggesting muscle spasm" in the latter. Although the 1996 x-ray showed "fairly advanced degenerative changes in the middle and lower thoracic spine with fairly prominent osteophytes," the disc spaces were well-maintained and I heard no persuasive evidence that these degenerative changes were responsible for Mr. Ruffo's symptoms.⁸

Mr. Ruffo received chiropractic care from Dr. Taverniti from June 1994 to April 1996, as well as active and passive physiotherapy, rehabilitation and massage. Dr. Taverniti's reports state that he tried to wean Mr. Ruffo away from passive treatments, but could not due to his continued pain intensity.

Dr. Taverniti conducted a Functional Abilities Evaluation (FAE) of Mr. Ruffo's neck, shoulders, knees and lumbar spine on September 27, 1994. Mr. Ruffo was anxious about and resistant to being tested, he refused to perform certain activities, he complained of pain and tenderness that did not correspond to the body parts or functions being evaluated, no objective evidence of pain or impairment could be found, he voluntarily limited his efforts, he was pain-focussed and exhibited numerous pain behaviours, and his actual physical abilities on testing were found to exceed his own perception of them.

Dr. Taverniti concluded that daily use of analgesics, psychosocial stress, depression, anxiety, abnormal illness behaviour, symptom magnification, tendencies towards whole body pain, chronic pain behaviour, high perception of pain intensity, and job dissatisfaction were impeding Mr. Ruffo's recovery.⁹

Dr. Taverniti assessed Mr. Ruffo again in April 1996. He reported that Mr. Ruffo was agitated, angry, irritable and had difficulty responding appropriately to questions, and that his generalized anxiety reactions included arguments with his staff and yelling about scheduling appointments. He noted increased psychological symptoms of severe anger and anxiety, depression, irritability and fatiguability, but stated that Mr. Ruffo put forth good effort on physical testing. He believed Mr. Ruffo to be genuine with regard to his perceived pain and concluded that he was unable to return to his pre-accident employment as a maintenance person.

I accept Dr. Taverniti's opinion. Dr. Taverniti saw Mr. Ruffo regularly over an extended period of time. His findings and opinion are consistent with those of other medical reports, including some of the Insurers.' As was the case with most of the professionals who treated Mr. Ruffo, Dr. Taverniti did his best for his patient but was unable to provide him with lasting relief, or to change his pain-focussed behaviour or his belief in his pain and disability.

I find that the reasons for Mr. Ruffo's deteriorated psychological and physical state as well as the obstacles to his rehabilitation were accurately summed up by Dr. H. Weinberg, an orthopaedic surgeon, in his May 1995 Medical Rehabilitation DAC report:¹⁰

I feel that his progress has been very limited due to a number of factors. He seems to be depressed and anxious about his situation and he also is doing very little to rehabilitate the injured tissues and therefore has weakness and tightness.

The pain inhibition limits his activity and because of the limited activity he is not able to restore the tissues to a healthy state and eliminate the pain problem...He needs to get into a productive activity so he can start to regain a feeling of self worth.

I find this opinion was as true at the time of the hearing as it was when first written, perhaps more. I find that by May of 1995, Mr. Ruffo had succumbed to a self-perpetuating cycle of pain and inactivity and had been suffering increasingly severe psychological symptoms. I find that he continued to deteriorate from that time. Dr. Weinberg felt that Mr. Ruffo needed a conditioning program and psychological support before he could resume a productive lifestyle. I note there is no suggestion in his report that Mr. Ruffo's complaints were not genuine.

Mr. Ruffo did, in fact, receive two years of psychological support, between September 1994 and September 1996, in the form of weekly psychotherapy sessions with Rose Grifone, an Italian-speaking Master's degree psychology student supervised by Lacroix, Scher Consultants. Dr. J. Michael Lacroix assessed Mr. Ruffo as suffering moderate anxiety and depression and reported that he was at risk of sliding into deeper depression without treatment.¹¹ He stated that Mr. Ruffo expressed his anxiety primarily through physical symptoms, an opinion shared by Ms. Grifone and noted by virtually all of the psychologists who have assessed Mr. Ruffo, as discussed below.

Mr. Ruffo attended these weekly sessions faithfully. Ms. Grifone kept detailed notes. In her final note, she reported that Mr. Ruffo was irritable and depressed throughout his treatment and that further sessions would be of no benefit as he was concrete in his thinking and resistant to psychological interpretation of his experience. Therapy degenerated to allowing Mr. Ruffo to vent his anger, and this therapy did not help him learn effective coping strategies to deal with his pain. I find that Ms. Grifone's records indicate that Mr. Ruffo complained persistently to her of pain, as well as anger towards the Insurer. I find that Ms. Grifone accepted Mr. Ruffo's chronic pain complaints as genuine.

A work-hardening program at COSTI in September 1995 was also unsuccessful. Mr. Ruffo was reluctant to attend until the Insurer told him it would reduce his benefits by 50 percent if he did not. He asked his rehabilitation case manager for assistance in returning to tailoring work; the case manager instructed COSTI to focus on a return to maintenance work. Dr. Ciurria and Dr. Taverniti supported a later daily start time for Mr. Ruffo due to his difficulty getting himself up and about early in the day, and this was agreed to. Even so, the program was discontinued after only one month as Mr. Ruffo was prevented by pain and fatigue from engaging in prolonged activity.¹² It was also evident in his testimony that Mr. Ruffo could not understand the point of some of the activities he was asked to do at COSTI, such as sorting plastic cutlery into bags.

As will be discussed more fully later, the Insurer took Mr. Ruffo's behaviour as evidence of lack of motivation. However, I find that, under the circumstances, Mr. Ruffo's frustration with efforts to rehabilitate him was understandable and does not indicate a lack of credibility or motivation.

Dr. Ciurria has been Mr. Ruffo's family doctor since 1984. He testified that, when the standard treatments which would normally benefit most motor vehicle accident victims with injuries similar to Mr. Ruffo's failed to help him, he referred him to a rheumatologist and a physiatrist, Dr. Robert Owen, who ruled out other physical causes for Mr. Ruffo's continuing complaints.

Dr. Ciurria diagnosed chronic pain and depression and referred Mr. Ruffo also to Dr. Robert Notkin, a psychiatrist, for treatment.¹³ He candidly admitted that there were no objective findings to support Mr. Ruffo's physical complaints. He did not dispute the finding of the FAE conducted by Dr. Jack Richman for the Insurer, discussed below, that Mr. Ruffo's actual physical limitations were out of keeping with his perceptions and his pain, and that he probably could do his job from a physical point of view. However, Dr. Ciurria explained that it was the very nature of chronic pain that objective findings and patient perception do not always coincide. He believed that Mr. Ruffo's perception of himself as totally disabled was the major obstacle to overcome and that this, as well as chronic pain syndrome and his psychological condition, rendered him disabled for any gainful employment.

I place a great deal of weight on Dr. Ciurria's evidence. Although he clearly had the best interests of his patient at heart, as one would expect from a family physician, his reports and his evidence at the hearing were balanced and unbiased. I find that he did not cross the line to become an advocate for Mr. Ruffo. He is not a psychologist, but I found Dr. Ciurria's observations about Mr. Ruffo's behaviour and mental state to be well within the bounds of his competence and experience as a general practitioner. His diagnosis of chronic pain and depression was based on over ten years' familiarity with his patient as well as a careful review of the findings of other medical specialists. He was the only witness, apart from Mrs. Ruffo, who had known Mr. Ruffo for several years before the accident and who could reliably compare his pre- and post-accident condition.

Dr. Robert Owen, a physiatrist, saw Mr. Ruffo seventeen times between January 1996 and June 1998. He testified that he noted spasm on several occasions, and that this was supported by the signs of scoliosis on the x-rays. His method of assessing the credibility of patients who presented with chronic pain was to observe, unbeknownst to them, their facial reactions to physical activity in a mirror, to see if they registered a pain reaction. He testified that he examined 500-600 motor vehicle accident victims a year, of which he found only 25 percent to be genuine. He concluded from his examination that Mr. Ruffo was not malingering, that he was obviously and genuinely in pain, and that he suffered from a chronic pain condition that prevented him from working as a maintenance person. He believed Mr. Ruffo to be depressed enough to warrant referral to a psychiatrist for treatment. I find that Dr. Owen has the qualifications and experience to make a valid assessment, and that he assessed Mr. Ruffo's physical and psychological condition together. I find such a "whole person" approach to be a reasonable, even preferable, approach to take with chronic pain. I accept his opinion and find that it supports Mr. Ruffo's claim that his pain is real and that it disables him from working.

As part of Dr. Ilacqua's psychological assessment, Mr. Ruffo completed the "Multiphasic Pain Inventory" (MPI), a test which indicated that he had a higher than average experience of affective distress (i.e., irritability, tension) and pain severity. That is to say, a lower pain threshold than the average person. He also completed the MMPI, a measure of personality, which indicated that persons with Mr. Ruffo's personality profile experience feelings of intense anger and hostility, but are unable to express them in an appropriate manner. Dr. Ilacqua noted that Mr. Ruffo's anger during the assessment interview and a fit of rage reported by Mrs. Ruffo were examples of such behaviour. He noted that Mr. Ruffo lacked insight into the origins and consequences of his behaviour, blamed others for his difficulties, and was unable to use effective strategies to cope with his pain condition and corresponding psychological distress. Dr. Ilacqua felt that the likely explanation for Mr. Ruffo's psychological distress was that he expressed his symptoms somatically, a tendency which most likely exacerbated his experience of pain and functionally incapacitated him. He concluded that the emotional consequence of Mr. Ruffo's pain symptoms affected his ability to perform his job tasks.

Dr. Tony Hunt's September 20, 1998 neuropsychological assessment for the Insurer yielded similar results. He also reported that Mr. Ruffo would not be able to function in any job where he would be remunerated financially.

The Insurer relied heavily on the opinion of Dr. Jack Richman, a general practitioner specializing in occupational medicine and pain management, in support of its position that Mr. Ruffo suffered no physical disability. Dr. Richman is the director of AssessMed Inc., a company used by employers and insurance companies to assess the physical abilities of injured persons in relation to their job function. He conducted the medical examination portion of the FAE and prepared the final report. An occupational health nurse conducted the remainder of the six-hour assessment through an interpreter.

Dr. Richman concluded that Mr. Ruffo suffered no measurable impairment and that he displayed marked symptom magnification and pain focussed behaviour that had no physiological, anatomical or psychological basis.

Dr. Richman is not a psychologist. He testified that although he was aware that psychologists were involved in dealing with Mr. Ruffo's pain focus at the time, he did not take the psychologi-cal aspect of Mr. Ruffo's pain complaints into account in his assessment. He conceded, however, that he would defer to the opinion of a psychologist about Mr. Ruffo's chronic pain and depression. The consensus of psychological opinion on Mr. Ruffo then and subsequently was that he suffers depression, anxiety and emotional disturbance which he translates into physical symptoms. I find Dr. Richman's opinion that Mr. Ruffo is not psychologically disabled to be without foundation and outside his area of expertise. In my view, a functional assessment of a chronic pain patient that ignores the psychological component of that condition is incomplete and of little assistance for the purpose of determining disability under section 7 of the Schedule.

Dr. Richman disbelieved Mr. Ruffo's complaints of neck, back and shoulder pain and discounted his numerous pain behaviours because he "could find no pain." He observed that Mr. Ruffo moved those body parts well on distraction, or when Mr. Ruffo thought he wasn't looking. For example, Mr. Ruffo claimed to be unable to raise his shoulders or bend forward, but Dr. Richman testified that he observed him fully abduct his shoulders while dressing and undressing and lean forward when he examined his heart. Dr. Richman also felt that Mr. Ruffo demonstrated that he could do assigned tasks in the FAE without pain, even though he did not observe Mr. Ruffo during the testing. He also agreed on cross-examination that Mr. Ruffo used improper lifting techniques, which could cause more pain than if an activity were performed correctly.

Dr. Richman also did not consider Mr. Ruffo to be deconditioned, contrary to Dr. Weinberg, who linked pain to deconditioning in his May 1995 MedRehab DAC report, and Dr. Taverniti and Dr. Ciurria in September 1995, both of whom found Mr. Ruffo to be deconditioned and incapable of prolonged activity in September 1995.¹⁴

Given the above, I do not find Dr. Richman's conclusion that Mr. Ruffo had no pain to be reasonable. I find that leaning forward on distraction is a far cry from the prolonged stooping and reaching of arms required to mop and sweep in Mr. Ruffo's job. I find that Dr. Richman simply did not believe Mr. Ruffo, and that he ignored information that might lend credibility to Mr. Ruffo's complaints. Dr. Richman testified that he believed Mr. Ruffo was focussing on his pain for reasons other than disability and went so far as to state that Mr. Ruffo did not want his assessors to find out what his maximum effort was, and that Mr. Ruffo did not believe he was totally disabled but that he wanted Dr. Richman to believe that he was. He felt that Mr. Ruffo's behaviour was conscious rather than unconscious. I find that such an opinion is outside of Dr. Richman's area of expertise, that it is poorly founded on the facts, and that it is contrary to the psychological opinions.

Dr. Richman based some of his assumptions about Mr. Ruffo's credibility on his responses to the "West Tool Sort Activity," a test in which a person is shown pictures of tools and must report to what extent they are physically able to use the tools depicted. Given Mr. Ruffo's documented difficulty in following test instructions in any language and his difficulty with abstract reasoning and generalisations,¹⁵ I find that this is precisely the type of test that is unlikely to yield a reliable result in his case. It certainly cannot be assumed, as Dr. Richman clearly did, that particular responses reflect a deliberate exaggeration of disability.

I find that throughout the testing at AssessMed, Mr. Ruffo exhibited the same behaviours as have been noted elsewhere by others. He was vague, reluctant to answer questions, apprehensive and upset about being tested, had difficulty following instructions and felt the examiners were biased against him. Dr. Richman stated that he twice had to go into the room where Mr. Ruffo was being tested by the occupational nurse to clarify instructions she had given him or to calm him down. I have already found that this behaviour, characteristic of Mr. Ruffo, does not mean that his pain complaints are not credible.

The Insurer also relied on the evidence of Dr. Peter Bernstein, a psychologist and consultant in health and rehabilitation psychology, to support its argument that Mr. Ruffo was not psychologically disabled. Dr. Bernstein conducted a functional assessment of Mr. Ruffo for the Insurer in Februrary 1995.¹⁶ He declined to comment on Mr. Ruffo's physical condition and concluded that "from a psychological point of view he [Mr. Ruffo] is not substantially unable to perform the essential tasks of his occupation." I do not accept this conclusion because I find that the report discloses no basis for it. Dr. Bernstein diagnosed both clinical depression serious enough to warrant psychiatric care and increased medication, as well as chronic pain syndrome, yet did not state how these legitimate medical conditions related to Mr. Ruffo's ability to work.

The Insurer also relied on the September 9, 1997 assessment conducted by psychiatrist Dr. Allan Rosenbluth, who determined that Mr. Ruffo did not suffer from a disabling major depressive disorder, but rather a mood disorder which fluctuated according to certain factors that included pain. He reported that Mr. Ruffo could return to "...some form of work, were he motivated to do so." As Mr. Ruffo's entitlement to benefits under the Schedule is based on his ability to do his actual maintenance job, and not his ability to do "some form of work," I find Dr. Rosenbluth's evidence of little assistance on the issue of disability. His opinion with respect to causation will be discussed below.

Conclusion on disability

I accept Mr. Ruffo's testimony that pain prevents him from working at his maintenance job. I find that the medical evidence supports his testimony and that he has complained consistently of the same pain symptoms from the day after the accident. It is clear from the evidence of his family doctor, Dr. Moddel, Dr. White, Dr. Weinberg, Dr. Owen, Dr. Taverniti, the psychologists and Mrs. Ruffo, whose evidence will be discussed below, that Mr. Ruffo has suffered varying degrees of depression, anxiety and emotional disturbance throughout. I found no persuasive evidence that Mr. Ruffo's pain complaints were not genuine.

On a balance of probabilities, therefore, I find on the evidence that Mr. Ruffo suffers from a genuine chronic pain condition that rendered him substantially unable to perform the essential tasks of his maintenance job in December 1995, and continued to do so at the time of the hearing. I find that his essential duties (mopping, sweeping, pulling garbage containers, changing light bulbs, etc.) require repeated stooping, leaning forward and reaching of his arms, activities he stated bring on pain. I find that his deconditioned state and perception of pain prevent him from engaging in sustained physical activity and that he would not be able to look after two apartment buildings eight hours a day, five days a week, even if he could do so at his own pace. I find that his depression, irritability, emotional volatility and social withdrawal would interfere substantially with his ability to deal with tenants.

Causation

I accept the principle set out in numerous Commission cases, that the accident need not be the sole cause of disability, but must have contributed materially or significantly to it. The Insurer argued that any disability that Mr. Ruffo might suffer was caused by factors other than the accident, in this case, pre-existing health, marital and employment problems and adverse early life circumstances, as well as the emotional stress of his dispute with the Insurer, particularly the arbitration proceeding.

The Insurer relied on the clinical notes and records of Dr. L.P. Lombardi, Mr. Ruffo's previous family doctor, as far back as 1976, as well as those of Dr. Ciurria and Dr. Ivan Elkan, an internist specializing in hypertension, to support this argument.

I found the brief references to fluctuating weight, alcohol consumption, cataracts, domestic difficulties, and especially "occasional bilateral low back pain associated with sitting" since 1976 to be few and far between and to be no more than the typical chronicle of ailments one might expect to find in the records of a family doctor. I heard no evidence whatsoever that any of these complaints had ever prevented Mr. Ruffo from working.

Similarly, I do not find Dr. Elkan's statement in his February 15, 1994 note that Mr. Ruffo "seemed to be ...somewhat depressed" to be significant. Mr. Ruffo had suffered from hypertension for four or five years previously and did not consistently take his medication. Despite this, however, Dr. Elkan reported "sparse" symptoms and noted that Mr. Ruffo did not suffer from headaches. I heard no evidence that hypertension did or could produce any of Mr. Ruffo's post-accident symptoms or that it had ever prevented him, or could prevent him, from working as a maintenance person.

I weigh this evidence against the testimony of Dr. Ciurria, who has known Mr. Ruffo since 1984 as "a rather well-dressed, affable, talkative, outgoing, friendly, relatively well-adjusted individual" who remained that way until the motor vehicle accident. Dr. Ciurria's notes indicate that Mr. Ruffo's first visit to him had been about his hypertension. Dr. Ciurria stated that he had never observed Mr. Ruffo to have any symptoms of depression prior to the accident. He contrasted this with Mr. Ruffo's irritability, loss of appetite and libido, sleep disturbance, social withdrawal and changed outlook on life after the accident. Well aware of the influence of psychological factors on Mr. Ruffo's chronic pain condition, including Mr. Ruffo's marked deterioration after the start of the arbitration proceedings and his fixed belief in his own disability, there was nevertheless no doubt in Dr. Ciurria's mind that Mr. Ruffo's condition was due in large part to the accident. He did not agree with the Insurer's suggestion that once the stress of the arbitration proceedings was removed, Mr. Ruffo would revert to his normal, pre-accident self.

Dr. Ciurria's testimony was supported by that of Doris Ruffo, Mr. Ruffo's wife of 28 years. Mrs. Ruffo was born and educated in England, where she received a Masters degree in Social Work from the University of Manchester and worked as a psychiatric nurse before immigrating to Canada. She stopped work after 25 years as a library assistant at the Metro Toronto Reference Library due to carpal tunnel syndrome and now receives a disability pension. The Ruffos have two grown sons, both of whom work and are university educated.

Mrs. Ruffo stated that she loved and respected her husband and pointed out that although she and Mr. Ruffo were from two different cultures, they had always been able to resolve any marital issues. She described what she considered to be a complete change in her husband's personality since the accident, from an active, sociable, meticulously-dressed man with whom she shared activities, to a withdrawn, introverted, depressed and emotionally volatile person who cared little for his appearance and no longer socialized with his friends as before. She stated that she and her husband now slept apart as Mr. Ruffo was so often up at night walking around in pain.

I accept Mrs. Ruffo's candid and straightforward testimony. I note also that none of the psychological reports points to pre-accident marital issues as being significant. I find that the pre-accident references to domestic difficulties in the notes of Dr. Lombardi and Dr. Ciurria signify no more than the normal ups and downs of any long-term marriage. I find no evidence that they played any role in the onset or maintenance of Mr. Ruffo's chronic pain condition. On the contrary, it is evident that Mr. Ruffo's deteriorated emotional and physical state has put a great deal of strain on the marriage.

The Insurer argued that Mr. Ruffo identified himself so strongly as a tailor that, nothwithstanding he had not worked at that occupation for many years, the loss of that work had such an impact on his life that it caused him to be depressed before the accident and that it continued to affect him afterwards.

The Insurer relied heavily on the medical report¹⁷ and testimony of Dr. Allan Rosenbluth, a psychiatrist, in support of its position that this and other factors, and not the motor vehicle accident, were the major causes of Mr. Ruffo's disability.

Dr. Rosenbluth testified that Mr. Ruffo did not suffer from a disabling major depressive disorder, but rather a mood disorder which fluctuated according to certain factors that included pain. He reported that Mr. Ruffo could return to "...some form of work, were he motivated to do so." He believed that Mr. Ruffo's problem was a lack of motivation and moderate depression due, "at a conscious or unconscious level," to pre-accident psychological issues. He identified these as longstanding unmet needs and unresolved emotional issues related to his difficult childhood, which he said Mr. Ruffo tried to downplay; vocational uncertainty, meaning no tailoring work for several years and no secure job to return to; and associated secondary gain factors. He stated that Mr. Ruffo adopted a passive approach rather than try to increase his activity level in spite of pain.

As there was no evidence that these pre-existing factors ever prevented Mr. Ruffo from working, and as Dr. Rosenbluth saw Mr. Ruffo on one occasion only, three years after the accident, I do not place much weight on his opinion.

On cross-examination, Dr. Rosenbluth admitted that his notes indicated that Mr. Ruffo had told him that his moods fluctuated primarily with pain, whereas his report gave the impression that pain was only one of several factors. In fact his report barely mentioned chronic pain, not even to reject it as a diagnosis. He did admit, though, that he was not qualified to assess Mr. Ruffo's physical pain, and he agreed that a person's perception that pain would worsen on physical activity could cause him to limit activity. I find that these admissions undermined Dr. Rosenbluth's opinion and that it was unreasonable for Dr. Rosenbluth to discount pain in favour of other factors as a reason for Mr. Ruffo's lack of motivation.

In fact, I find Dr. Rosenbluth's emphasis on lack of motivation to be contradicted by the weight of the evidence. Dr. Lacroix and Rose Grifone had both identified Mr. Ruffo's strong pre-accident work ethic. Mrs. Ruffo described her husband as a good provider and as the more optimistic partner in the marriage, as he had always believed if he were out of work that "something would turn up." Mr. Ruffo testified that although he would prefer tailoring work if it were available, he was content to do what work was available. His income tax records from 1992, 1993 and 1994 indicate that he worked and collected unemployment insurance benefits in the years prior to the accident. Although it is clear that Mr. Ruffo earned quite a bit less than he had been able to earn from tailoring work several years earlier, I find his turning his hand to whatever work was available to be consistent with a lifelong pattern. I accept Mr. Ruffo's testimony that he liked his maintenance job and was proud of the trust that his employer had in him.

Mr. Ruffo testified that he did not agree with Dr. Rosenbluth's report and that he did not understand that the doctor was going to prepare a report and send it to the Insurer. Mr. Ruffo expected to have an interpreter present at the assessment, but when one was not provided, he agreed to go ahead in English. This is corroborated by Mrs. Ruffo. I accept her evidence that the Ruffos felt under some pressure to go ahead with the assessment, which had been scheduled for a Saturday morning. Dr. Rosenbluth testified that he had no difficulty communicating with Mr. Ruffo. Mr. Ruffo testified that "when he was talking I kept saying 'yes' but I did not understand what he was saying. I was satisfied to do anything as long as it went quickly." Having observed Mr. Ruffo myself and having mind to Dr. Ilacqua's explanation of how Mr. Ruffo behaves under stress, I accept Mr. Ruffo's evidence and am not persuaded that Dr. Rosenbluth's confidence in the accuracy of the information he obtained from Mr. Ruffo is well placed.

The Insurer also relied on the opinion of Dr. Bernstein that, as part of the chronic pain syndrome, psychological and external factors were perpetuating Mr. Ruffo's pain complaints. Dr. Bernstein listed only two such factors: financial incentives and "Mrs. Ruffo's well-intentioned reinforce-ment of pain behaviours."¹⁸ He provided no facts, reasons or examples to substantiate this opinion. Dr. Bernstein felt that Mr. Ruffo's depression was largely the result of his dissatis-faction with his overall life situation, to which the contribution of the motor vehicle accident was minimal. I prefer the evidence of Dr. Ciurria and Mrs. Ruffo, who knew Mr. Ruffo better and longer than Dr. Bernstein, that Mr. Ruffo became depressed when his life and personality changed dramatically after the accident.

Dr. Hunt believed that Mr. Ruffo's symptoms were attributable to pre-accident factors "without which his soft tissue injuries would from all accounts have been expected to have resolved within a reasonably short time frame." These pre-existing factors were in part "characterological," and included low self-esteem, vulnerability, problems with "assuming active responsibility for applying adaptive coping strategies to function despite any pain symptoms," a pre-accident borderline-normal IQ and "low level of cognitive functioning in keeping with his education." He testified that it came to light in his interview with Mr. Ruffo that Mr. Ruffo was not able to write out a simple cheque. When he asked him how he had been able to run his own tailoring business, it turned out that Mr. Ruffo was completely dependent on his wife for financial matters. Contrary to Drs. Rosenbluth and Bernstein, Dr. Hunt reported that Mr. Ruffo had been "cossetted" rather than abandoned in childhood. This version was consistent with Mr. Ruffo's testimony that he had had a good childhood. I find that this evidence effectively refutes Dr. Rosenbluth's opinion that Mr. Ruffo's post-accident psychological difficulties stemmed from an unhappy childhood.

Dr. Hunt also felt that Mr. Ruffo's pain and distress were prolonged by improper treatment, conflict with lawyers and the Insurer, and the stress of the arbitration proceedings.

I find that Dr. Hunt's evidence was not helpful to the Insurer's position on causation. In the words of Arbitrator Blackman,

This Commission has repeatedly held that the accident need not be the only cause of the subsequent injuries, but rather, must signficantly or materially contribute to the Applicant's impairment. In addition, this Commission has adopted the long-standing "thin skull rule" which, in the context of statutory benefits, means that one is not to be denied weekly benefits because one's pre-accident physical, psychological or emotional condition makes one more vulnerable to disability than might normally be the case."¹⁹

I find Dr. Hunt's opinion is nothing more than a statement, in psychological terms, that Mr. Ruffo was a thin-skulled plaintiff. I find this also to be largely true of the reports of Drs. Rosenbluth and Bernstein. Despite their reports, I find that, given Mr. Ruffo's psychological, intellectual, educational and emotional limitations, he coped very well with his life prior to the motor vehicle accident. There was no evidence that these limitations did or would prevent him from working as a maintenance person. It is clear from all of the evidence that it was Mr. Ruffo's experience with chronic pain after the accident that overtaxed his ability to cope and rendered him disabled from his work. For these reasons I conclude that he has established on a balance of probabilities that the motor vehicle accident materially contributed to his disability.

Surveillance

The Insurer relied on sixteen minutes of video footage of Mr. Ruffo attending the Woodbine Off-Track Betting facility to support its position that Mr. Ruffo's pain complaints were not credible and that he was not as disabled as he had attempted to portray himself. Dr. Ciurria, Dr. R.Vitelli and Dr. Owen did not change their opinions about either Mr. Ruffo's credibility or his disability after viewing the videotape. Mr. Ruffo stated that, compared to the video, where he is seen to walk quite slowly, he used to walk so that "people thought I was a policeman," which I took to mean that prior to the accident, he walked in a more vigorous manner. After viewing the video, Dr. Hunt felt that Mr. Ruffo had not been entirely truthful with him about the severity of his symptoms but concluded only that Mr. Ruffo might at least be able to undertake a work trial.

Mr. Ruffo candidly admitted in his testimony that he spent time at the racetrack as it distracted him from his troubles. The film footage shows that he arrived late in the morning, consistent with his testimony that he does little before noon. I find nothing in the video that would cause me to change my finding that Mr. Ruffo is substantially unable to perform his essential work tasks eight hours a day, five days a week. I find nothing in the video to undermine Mr. Ruffo's credibility.

Language

The Insurer impugned Mr. Ruffo's credibility on the grounds that he misrepresented his ability to speak English. I do not find this to be the case. I accept Mr. Ruffo's testimony that he did not feel comfortable communicating with medical professionals in English. This is corroborated by the testimony of Mrs. Ruffo, who speaks Italian and accompanied her husband to almost all of his medical appointments, serving as interpreter where needed.

There is ample evidence to indicate that Mr. Ruffo's English skills were limited. Dr. Elkan reported that "unfortunately there was a little bit of a language barrier" in 1994. In his February 1995 report, Dr. Bernstein stated that Mr. Ruffo had no difficulty expressing himself in English or understanding the examiner, but noted that tests were administered in English with the help of a translator. His follow-up letter a month later then refers to Mr. Ruffo's "limited English." Dr. Ciurria testified that he spoke with Mr. Ruffo in Italian. Mr. Ruffo's previous family doctor, Dr. Lombardi, also spoke Italian, as did Dr. Taverniti. Rose Grifone, two rehabilitation managers and Dr. Ilacqua all communicated with Mr. Ruffo in Italian. Either Mrs. Ruffo or a professional interpreter was present for almost all appointments where the other party did not speak Italian.

Mr. and Mrs. Ruffo testified that Mr. Ruffo's social life prior to the motor vehicle accident had a decidedly Italian focus; he played "bocci" and attended the San Vito social club with his Italian friends.

Dr. Hunt stated that, although an interpreter was present during his interview with him, Mr.Ruffo spoke English for over half an hour, leading him to conclude that "he seemed sufficiently fluent in English to engage in a general discourse in matters familiar to him." That may be true, but Dr. Hunt also considered Mr. Ruffo to be functionally illiterate in English, and there is no doubt that Mr. Ruffo was in unfamiliar territory with respect to his dispute with the Insurer.

I find that the bulk of the evidence points to limited English skills. I have no difficulty believing that in the context of his dispute with the Insurer, who did not believe Mr. Ruffo's pain complaints, and particularly with respect to the lengthy and stressful arbitration proceedings, Mr. Ruffo was in over his head and at a disadvantage due to both a limited understanding of English and his limited education.

Supplementary Medical Benefits

Recliner Chair

Mr. Ruffo claimed the cost of a recliner chair pursuant to section 40(5)(a) of the Schedule. To be entitled to it Mr. Ruffo must establish that it is a reasonable measure to reduce or eliminate the effects of his disability. No evidence was led as to the actual cost of this chair. Mr. Ruffo and Dr. Ciurria stated that Dr. Taverniti suggested the chair to Mr. Ruffo. Dr. Ciurria supported the chair, on the basis that if Mr. Ruffo thought he could sleep better and obtain relief from discom-fort by using it, he might be able to function better during the day. Dr. Weinberg did not think that Mr. Ruffo would gain significant benefit from the chair as it was more suitable for persons with lower limb disabilities. Dr. Sydney Gershon, a rheumatologist, stated that the chair would not ease the pain in Mr. Ruffo's neck, and recommended a cervical pillow, which the Insurer paid for.²⁰

Mr. Ruffo was very upset that the Insurer refused to pay for the chair. Mrs. Ruffo testified that he took it quite hard and felt it was a personal attack upon him and a belittling of his symptoms, and that he felt the Insurer was not prepared to do anything to help him. This is very unfortunate. However, I find that Mr. Ruffo has not established that this chair is a reasonable measure.

Chiropractic treatments

Mr. Ruffo claims $5,699.97 for the cost of chiropractic treatments provided by Dr. Taverniti from June 23, 1994 to April 23, 1996,²¹ pursuant to subsection 36(1)(b) of the Schedule. Mr. Ruffo testified that the treatments provided some temporary relief. In his May 16, 1995 Medical Rehabilitation DAC report, Dr. Weinberg felt that passive modalities were not doing very much for Mr. Ruffo and that what he really needed was a multidisciplinary program including active exercise. I heard no evidence about whether the cost of the chiropractic treatments or the treatments themselves were reasonable after May 1995. On the basis of the DAC report, therefore, I find that Mr. Ruffo has not established that he is entitled to the cost of chiropractic treatments after May 31, 1995. I find that Mr. Ruffo is entitled to the expenses of chiropractic treatment prior to that date, to the extent that the Insurer has not yet paid them.

EXPENSES:

I exercise my discretion to award Mr. Ruffo his expenses incurred in this arbitration, except for expenses associated with attendance on October 7, 1998.

On June 18, 1998, part way through Mr. Ruffo's cross-examination, the hearing was adjourned at Mr. Zeppieri's request to permit him to have his client assessed by Dr. Ilacqua specifically to determine if he was competent to continue to be cross-examined.

However, it is evident from Dr. Ilacqua's July 10, 1998 report that he was never asked this question but rather he was asked for, and provided, a psychological report focussing on the issues in dispute. Further assessment and reports by Dr. Vitelli on July 21 and 23 also failed to deal with the issue of competence. Not until October was a medical report obtained that commented on Mr. Ruffo's competency to testify. The Insurer attended at the Commission on October 7, 1998, to argue this issue, but Mr. Zeppieri sent a representative to request an adjournment. After reviewing Dr. Ilacqua's October 5, 1998 report, Mr. Zeppieri conceded on October 14 that Mr. Ruffo was competent to continue his testimony. Accordingly, cross-examination resumed on November 23, 1998, the first available date.

The Insurer argued that Mr. Zeppieri obtained the psychological opinion to bolster his case, and to a certain extent I agree. No explanation was provided as to why Dr. Ilacqua's and Dr. Vitelli's reports failed to address the issue of competence. I find that the resulting delay, in an arbitration already plagued by delays, was unacceptable and that the Insurer was put to unnecessary expense as a result.

As Mr. Ruffo's application for arbitration was filed prior to the 1996 amendments to the Schedule, I have no jurisdiction to consider an award of expenses to the Insurer.

November 10, 1999

Susan Sapin Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 221

FSCO A96-000989

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

RAFFAELE RUFFO

Applicant

and

LIBERTY MUTUAL 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. Liberty Mutual shall pay Mr. Ruffo weekly income replacement benefits from December 23, 1995 and ongoing.

2. Liberty Mutual shall pay Mr. Ruffo his expenses for chiropractic treatments provided by Dr. Antonio Taverniti from June 23, 1994 until May 31, 1996, to the extent that Liberty Mutual has not yet paid these expenses.

3. Liberty Mutual shall pay Mr. Ruffo interest on overdue weekly income replacement benefits and on overdue chiropractic expenses pursuant to section 68 of the Schedule.

4. Liberty Mutual shall pay Mr. Ruffo his expenses of the arbitration except for expenses associated with attendance on October 7, 1998.

November 5, 1999

Susan Sapin Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule" refers to the original O.R. 776/93, and "1995 Schedule" refers to O.R. 776/93 as amended.
2. 2Exhibit 1, Tab 20
3. 3Quatrocchi and State Farm Mutual Automobile Insurance Company (OIC A-006854, September 29, 1997)
4. 4Prompted by the concerns of Dr. Ciurria in a letter to Mr. Zeppieri dated June 14, 1998.
5. 5On the basis of an initial report dated July 10, 1998, by Dr. Giorgio Ilacqua, an Italian-speaking psychologist, and on consent of the Public Trustee's Office, Mr. Justice Spence of the Ontario Court (General Division) issued a judgment on August 17, 1998 under section 22 of the Substitute Decisions Act, appointing Mrs. Ruffo as guardian of Mr. Ruffo's property including the proceeds, if any, of this arbitration. Neither Dr. Ilacqua's July 10 report nor the judgment dealt in any way with Mr. Ruffo's competence to testify.
6. 6Ibid., at page 10
7. 7Insurer's Examination Reports of Dr. Ernest White, an orthopaedic surgeon, and Dr. G. Moddel, a neurologist, dated July 11, 1994.
8. 8Dr. Robert Owen, Mr. Ruffo's physiatrist, thought that the accident had rendered these degenerated sites symptomatic, but as Mr. Ruffo's pain complaints did not always correspond to these sites, I do not consider this to be conclusive.
9. 9FAE conducted by Dr. Taverniti on September 27, 1994 and report dated October 4, 1994 (Exhibit 1, Tab 78)
10. 10Exhibit 1, Tab 92
11. 11Report dated September 12, 1994
12. 12Progress Report #3 dated September 26, 1995 from Genex Services of Canada Inc. to Liberty Mutual and Physician's Visit Report of Dr. Ciurria dated October 11, 1995.
13. 13Dr. Notkin treated Mr. Ruffo from April to June 1995. I find that Dr. Notkin's only role was to prescribe and monitor Mr. Ruffo's antidepressant medication. His reports indicate he felt Mr. Ruffo's medication should be increased to the minimum effective dosage. Mr. Ruffo testified that he eventually stopped seeing Dr. Notkin as he felt he did nothing for him but increase his medication.
14. 14As discussed above, in relation to Mr. Ruffo's inablity to participate fully in the COSTI work-hardening program.
15. 15See reports of Drs. Hunt, Vitelli and Ilacqua.
16. 16Exhibit 1, Tab 6, Report of February 21, 1995, page 5
17. 17Dated September 9, 1997.
18. 18In fact, the only report he reviewed that contained any information about financial issues was that of Dr. Lacroix, dated September 12, 1994, which stated that Mr. Ruffo stated that he and his wife had suffered 'no major financial difficulties thus far'. Dr. Lacroix also viewed Mr. Ruffo's family support as positive, rather than negative.
19. 19Hearn and Allianz Insurance Company of Canada (FSCO A97-001667, August 17, 1999, at p 18)
20. 20Report dated April 18, 1995, Exhibit 1, Tab 46.
21. 21Exhibit 2, Tab 82.