Neutral Citation: 2000 ONFSCDRS 119
FSCO A99-000517
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
DANIEL J. ALLEN
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
K. Julaine Palmer
Heard:
March 20, 21 and May 5, 2000 in Peterborough; and June 9, 2000 in Toronto
Appearances:
Miles Obradovich for Mr. Allen
Lisa Hamilton for Wawanesa Mutual Insurance Company
Issues:
Dan Allen was injured in a motor vehicle accident on April 22, 1996. He received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.1 Wawanesa terminated weekly income replacement benefits on June 5, 1998. The parties were unsuccessful at resolving their dispute through mediation and Mr. Allen 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:
Is Mr. Allen entitled to receive income replacement benefits from June 6, 1998, and ongoing, pursuant to section 7 of the Schedule, on the basis that he suffers a substantial inability to perform the essential tasks of his employment?
Is Mr. Allen entitled to receive an offer for loss of earning capacity benefits from Wawanesa, pursuant to section 21 of the Schedule?
Is either party liable to pay the expenses of the other in respect of the arbitration, under section 282(11) of the Insurance Act?
Result:
Wawanesa Mutual Insurance Company shall pay Mr. Allen income replacement benefits from June 6, 1998, ongoing, plus interest as set out in section 68 of the Schedule, until it fulfills its obligations under Part VI of the Schedule regarding payment of loss of earning capacity benefits.
Wawanesa Mutual Insurance Company shall deliver to Mr. Allen a written offer with respect to the payment of weekly loss of earning capacity benefits, as set out in section 21 and following of the Schedule.
Wawanesa Mutual Insurance Company shall pay Mr. Allen his expenses of the arbitration, as agreed or assessed.
EVIDENCE AND ANALYSIS:
The Accident
Mr. Allen testified that he was on his way to work, traveling on Highway 45 near Trent River Road, when a car that failed to observe a stop sign struck his 1988 Toyota Camry on the driver's side fender. It was a very foggy morning and Mr. Allen testified he was traveling at a speed of approximately 50 to 60 km/hr. He was unable to take evasive action and his car was pushed off the road. He stated that he was able to remove his seat belt and exit his vehicle. He does not remember much more about the accident, except that the other driver came to see if he was all right.
Mr. Allen's wife drove to the accident scene in another vehicle and took her husband home. She called his employer and explained what had happened. Mr. Allen testified that he tried to reschedule a meeting for that afternoon, but his supervisor was not favourably inclined, so he later went to work. He attended at the Emergency Department of Campbellford Memorial Hospital the following afternoon complaining of headache, lower back and neck pain. According to the hospital records, the attending physician prescribed rest, Flexeril, and heat alternating with ice, and advised Mr. Allen to follow up with his family doctor if his symptoms were not resolving. Although the physician diagnosed no loss of consciousness or head injury, the records show that Mr. Allen and his wife received instructions on head injury procedures.
Mr. Allen received weekly income replacement benefits (IRBs) from Wawanesa for nearly two years following the accident. When Wawanesa notified him that it intended to terminate his IRBs, Mr. Allen requested a disability assessment, as provided in section 64 of the Schedule. Wawanesa continued to pay Mr. Allen IRBs pending the outcome of the assessment, as the Schedule requires. Wawanesa terminated the IRBs effective June 5, 1998, as permitted by subsection 64(11) of the Schedule, since the assessment report concluded that Mr. Allen no longer met the test for entitlement to those benefits.
Essential Tasks of His Employment
In order to be entitled to an offer for loss of earning capacity benefits (LECBs), Mr. Allen must prove that he continued to qualify for income replacement benefits at 104 weeks after the onset of his disability. That means he must prove that he suffers a substantial inability to perform the essential tasks of his employment, as a result of an impairment he sustained in the accident of April 22, 1996.
Mr. Allen testified about his education and employment background. After receiving his grade 12 high school diploma, he attended Sir Sandford Fleming College for three years, graduating as a geotechnical technologist. For the next two years he worked for Terraspec Soil Investigations and Material Testing flagging on highway projects, performing soil identification, drilling including using diamond bit cores, assisting in a lab and testing concrete. He was next hired as a geotechnical field technician by Geo-Logic Inc. on May 27, 1993. Geo-Logic Inc. specializes in soil and environmental investigations, materials testing, and hydrogeology.
Mr. Allen described the different aspects of his work at Geo-Logic. He inspected work on construction sites, sampled concrete, asphalt and aggregates, inspected reinforcing steel, inspected caissons, performed laboratory testing, did some drilling and worked with manual augers. Employment records from Geo-Logic show that he was employed there from May 27, 1993 until November 3, 1995, but was on layoff from January to mid-April 1994 and again in mid-March 1995 for an undisclosed period. His former employer wrote as follows in a letter dated February 24, 1999:
The position of geotechnical field technician involves driving to various construction sites to collect samples and testing of construction materials. Examples of samples collected are aggregates, asphalt, concrete and concrete blocks which can range in weight from 10 to 30 kgs. The equipment required to perform the on-site testing can range from a Nuclear Density Gauge which weighs approximately 15 kgs to a concrete core drill which weigh 40 kgs. Due to access constraints at construction sites, it is often necessary to carry the samples or equipment 100 to 200 metres over uneven terrain.
The position of geotechnical field technician requires the person to be physically fit.
On November 6, 1995 Mr. Allen began work as a Contract Coordinator at Canadian Forces Base Trenton for Defence Construction Canada. He was originally hired for a term ending February 29, 1996, but his contract was later extended to end April 26, 1996—four days after the accident. According to the letter confirming his employment, Mr. Allen was hired to work 7.5 hours per day Monday to Friday.
Mr. Allen described his job at CFB Trenton, where the work included the installation of new water mains. He was required to make on site inspections of footings and inspect the placement of concrete and reinforcing steel. Some testing required Mr. Allen to drive a rod deep into the soil using a four-pound sledge hammer, then pull the rod back out. He needed to measure and control the quantity of rock being excavated and the amount of aggregate being transported in. He was required to identify products being used by the various contractors to insure they met the contract specifications. He ensured work on site conformed to Ontario building codes and safety standards. He did some surveying work, which required walking up to two miles carrying a surveyor's transit. He inspected the placement of manholes and sewers, which required him to climb into and out of trenches. He facilitated the coordination required between base personnel and the contractors regarding such matters as the shutdown of electrical or water mains. He dealt with contaminated waste removal.
Mr. Allen described sampling materials, such as aggregates or concrete, for quality control. In his employment at Geo-Logic he would take the samples and test them himself, but at the CFB Trenton job he would collect the samples for others to test. Depending on the job, he might sample from two to six bags of 50 pounds each per day. On the CFB Trenton job, Mr. Allen testified he was sampling "a couple of tons per month." At the beginning of the contract he sampled more than at the end of the contract in April 1996. Mr. Allen described the testing of fifteen pound concrete cylinders for air content and slump.
Mr. Allen estimated that on the CFB Trenton job he spent three to five hours in the office per day and five to seven hours in the field. He testified that he was on his feet constantly, about five hours per day, except when using the computer, using the telephone or making notes in his truck. At the end of his CFB Trenton contract, he was required to meet with contractors and colleagues to discuss the remainder of the job.
Mr. Allen testified about the relationship between his previous employment with Geo-Logic and his subsequent employment with Defence Construction Canada at CFB Trenton. Mr. Allen testified that he had worked at the Trenton air base as a Geo-Logic employee and was offered employment by DCC over the winter months when he risked a layoff from Geo-Logic. He intended to return to Geo-Logic's employ in the summer of 1996, and indeed, he testified that Geo-Logic called him to return to work near the end of June 1996, after the accident, but he was unable to accept the job.
Vern Haggerty, Project Supervisor at DCC and Mr. Allen's immediate supervisor, met with a rehabilitation consultant hired by Wawanesa on September 10, 1996 to discuss Mr. Allen's work. A three-page letter summarizing their conversation, together with an annotated three-page form entitled "Summary of Job" was filed at the hearing. The "Summary of Job" is mainly concerned with the physical demands of the work. However, some of the mental elements of the job are included in the Description of Tasks. Mr. Haggerty described the job, as recorded on the rehabilitation consultant's form, as follows:
75% field work – water and sewer upgrades – inspect electrical duct bank inspections, inspect manholes rebar inspections; estimate for change orders; keep track of % of work completed for payment, recommend payment. Interpretation of contract documents.
Physical Requirements
A
Standing
Necessary - 75%
Type of Surface - concrete - gravel - grass - ditches. Would have to get down in trench to check caisson inspect & water
B
Walking
Necessary
As above
C
Sitting
Necessary - 25%
Duties while sitting - computer work, estimating, writing change orders
M
Reaching
Necessary
holding survey rods etc.
N
Handling
Equipment
In her reiteration letter of September 10, 1996 Carol Bellefontaine, R.N., Rehabilitation Consultant, wrote as follows about Mr. Haggerty's description of Mr. Allen's job. Mr. Haggerty later signed a copy of the letter, after making some minor changes to it.
... his position was that of contract coordinator. You have described this as "your eyes and ears in the field." You stated that his employment entailed ensuring that the contractors hired by Defence construction fulfilled their contractual obligations. ...
I understood you to say that he was excellent in field work, getting along well with the people he worked with, and the contractors. You have stated that this could be stressful as there is often some confrontation involved.
You said that you would consider hiring this client again should he improve his computer and writing skills.
In this case I find that Mr. Allen's essential employment tasks comprise the fundamental tasks that he performed for Defence Construction Canada as a contract coordinator. I find that the essential tasks of Mr. Allen's work as a contract coordinator consisted of the following:
He had to be physically capable of collecting samples, including aggregates, asphalt and concrete weighing up to 75 pounds. He had to be capable of carrying surveying equipment weighing approximately ten pounds over uneven terrain, in order to perform on-site testing. He needed to be able to use a four-pound sledge hammer to drive rods into the ground. He needed to be able to climb into and out of trenches approximately 12 to 15 feet deep and to scale ladders. He needed to be able to concentrate on test samples and compare them with contract standards.
He needed to identify products being used in fulfilling water and sewer installations and compare them to the contract specifications. He needed to be able to perceive subtle distinctions in components, for example, in types of valves. He needed to be familiar with building codes and safety standards. He needed to be able to interpret construction drawings and contractual language. He needed to be mentally able to plan ahead, to anticipate, to estimate, to concentrate, to attend to detail, and to negotiate in order to fulfill the contracts to specifications and to coordinate shutdown of electrical and water systems. He needed to be able to deal with sensitive situations where errors had occurred to minimize the cost of correction or to resolve issues to the satisfaction of both DCC and the contractor. He required good communication abilities, good "people skills" and the ability to control his emotions and behaviour while effectively dealing with stressful situations.
Substantial Inability Test
Mr. Allen testified that he could not have returned to work to Defence Construction Canada in May 1998, because he was suffering from head pain, mid-back pain, and low back pain. He testified he had no ability to concentrate at that time. He would not have been able to shoulder the responsibilities of the job as an active professional, planning ahead on tasks, communicating with others and holding his temper. He stated he could not read and interpret what he was reading. Getting in and out of a car was difficult for him. He could not handle the stress of work. He testified that his memory was impaired to the extent that he could not remember what someone told him the day before, or even five minutes before, because of the pain he was experiencing.
Mr. Allen described his attempt to return to a modified job in August 1999. For five weeks he worked three to four hours in the evenings as a lab technician at Geo-Logic testing asphalt samples with an extraction centrifuge. He tested four 1000 gram samples each evening, working alone, unsupervised. Written instructions were left for him. After five weeks, Mr. Allen testified he was having problems with pain and concentration. He testified that he was starting to make errors. He was falling behind in his household tasks again. He could not sit in a chair without "major pain" and could not lift his arms.
Mr. Allen testified that he could not return to work at the time of the hearing because of problems with concentration and pain. He testified that he can concentrate for short periods of time, but tires very easily. If he overdoes, he stated he requires a day to recuperate, but asserted that this is an improvement from an earlier time when he would require three full days to recuperate. His main problems are still sitting, driving, and reading. He has a very difficult time reading and putting together what he has read to make sense of it. Any overexertion, such as sitting, standing or driving too long will cause pain.
Lay Witnesses
Several friends and Mr. Allen's former wife testified at the hearing about their observations of Dan Allen both before and after the accident. Mr. Mitch Chiasson, 36, an air filter salesman and friend of Mr. Allen's for about 13 years, testified. He testified that he has seen Mr. Allen about once every two months since 1995. Mr. Allen stayed at his home in Ottawa for about one week in the spring of 1998. Mr. Chiasson described Mr. Allen as rambling, unfocused, scattered in his thoughts, depressed and very distracted at that time. Mr. Allen had good parts of his day, but needed to rest frequently in a darkened area. Mr. Chiasson described Mr. Allen's outlook as generally positive. He noticed him exercising and doing stretches, but described his limited endurance when walking to a nearby duck pond. Walking a distance of perhaps 50 metres from his home, then 50 metres back would tire him. Mr. Chiasson testified that Mr. Allen would begin to work on some bicycle maintenance in his basement, but then come upstairs and forget that he had been doing that work. Mr. Chiasson said he observed a "day and night" difference in Mr. Allen since before the accident. He was entirely consumed by talking about his pain and the accident and his frustration with those who were unable to see his deficits.
Elizabeth Diamond, Mr. Allen's former spouse testified. They were married in May 1992, separated in May 1998, and divorced in June 1999. They have two children, born in October 1993 and August 1996 who now live with Ms. Diamond. Ms. Diamond described a good family and social life with Mr. Allen prior to the accident. She described Mr. Allen's outdoor work around their home and his renovations to their house. He also enjoyed ice hockey, baseball, fishing and hunting. Ms. Diamond could not testify about Mr. Allen's early progress after the accident, since she went to her mother's home in P.E.I. five days after the accident to help prepare for her sister's wedding. Mr. Allen joined her five weeks later for the wedding.
Ms. Diamond described that Mr. Allen began to spend more and more time in bed after the accident in 1996. He complained of pain everywhere constantly. He coped by going to bed. His ability to perform a task like raking or pulling brush in their yard was limited to about 30 minutes, then he would go to bed. Ms. Diamond described Mr. Allen's angry emotional outbursts after the accident. She testified she had to "walk on eggshells" around him—even doing basic housework would drive him crazy, for example if he could sense her moving behind him. He could not cope with their then three year old son around him. Ms. Diamond testified that Mr. Allen bonded well with their new daughter in 1996, because she was a baby and he could lay down with her. Ms. Diamond observed difficulties with Mr. Allen's memory and concentration. He could not even watch a hockey game. He would forget what he had said before. These problems were not present before the accident. Ms. Diamond said she and Mr. Allen separated in May 1998 as a result of increasing physical and verbal abuse, which began about six months after the accident.
Medical Witnesses
Dr. Sydney Jaikaran, Mr. Allen's treating physiatrist, testified at the hearing. Dr. Jaikaran is qualified in both orthopaedics and physical medicine and rehabilitation. Dr. Jaikaran first saw Mr. Allen in January 1997. He conducted electrodiagnostic studies of his left arm and left side of his neck to rule out cervical radiculopathy. He arranged a total body bone scan to rule out any occult bony injury. In February 1997 Dr. Jaikaran conducted further nerve conduction studies and electromyography of the left side of Mr. Allen's back and his left leg. Dr. Jaikaran found no evidence of a lumbar radiculopathy. He diagnosed Mr. Allen's condition as chronic pain syndrome, which he defined as continuous pain lasting more than six months with no obvious cause. He recommended Mr. Allen increase his cardiovascular activity to 20 to 30 minutes, four times weekly. Dr. Jaikaran intended to follow Mr. Allen as a patient, but Mr. Allen did not return for his next appointment. Mr. Allen returned to Dr. Jaikaran in February 2000.
Dr. Jaikaran described his experience managing the treatment of patients with chronic pain syndrome. Dr. Jaikaran testified that his practice is to try, first and foremost, to get his chronic pain patients physically fit. On his first examination of Mr. Allen he found him muscular, and as a young man of only 29, Dr. Jaikaran felt Mr. Allen could be made fit.
Dr. Jaikaran testified that he does not push his chronic pain patients into many different treatments at the same time. He prefers to take one treatment at a time. It is important to motivate the patient and suggest something they are agreeable with, to increase compliance. He works hard to establish a relationship of mutual trust and confidence.
Dr. Jaikaran testified that at Mr. Allen's first examination in 1997, he complained of pain all over his body, of headaches, pain between his shoulder blades, in his left buttock and lumbar spine. On his second examination in 2000, he complained of less widespread pain: the pain was focused in his lower back, his neck and his forehead. Dr. Jaikaran reviewed the reports of other health care practitioners who treated Mr. Allen between 1997 and 1999. Based on his own examinations of Mr. Allen and these reports, and assuming Mr. Allen's condition had not changed tremendously between his examinations of him in 1997 and 2000, Dr. Jaikaran was of the opinion that Mr. Allen could not have performed his essential employment tasks at the time relevant to this arbitration, in June 1998. Dr. Jaikaran's opinion was that Mr. Allen suffers from serious chronic pain and that his case was a difficult one.
Dr. Jaikaran felt it was notable that Mr. Allen had been widely assessed since the accident but that he had received very little treatment for his chronic pain. For example, he had never been admitted to hospital to be investigated. Dr. Jaikaran testified he felt Mr. Allen should be admitted to hospital in the future.
Dr. Jaikaran felt that Mr. Allen's use of marijuana, hashish, and alcohol was unproductive and had had a very negative effect on his rehabilitation. In preparation for his testimony, Dr. Jaikaran had searched on the medical internet for studies showing evidence that drug-taking had caused chronic pain. He could find no such evidence; however, he admitted that a personality defect may be a factor in development of chronic pain. Dr. Jaikaran was of the view that chronic pain syndrome could exist without evidence of a major psychiatric illness. However, he felt that if chronic pain patients were able to tolerate antidepressant medication, it could help the treatment of their chronic pain. In Mr. Allen's case, Dr. Jaikaran testified he had taken into account the various opinions of psychologists and psychiatrists who have examined or treated him, but his diagnosis did not depend on any one opinion.
Dr. Jaikaran felt that Mr. Allen should have psychological treatment that might help his chronic pain, in recognition of the features of his pre-accident personality. Dr. Jaikaran also was of the opinion that taking drugs is one of the factors perpetuating Mr. Allen's chronic pain syndrome. Dealing with his drug abuse could help his chronic pain. To this end, he had referred Mr. Allen to an outpatient drug treatment program available in Peterborough.
Dr. Jaikaran indicated he was not promoting Mr. Allen's disability as a physical incapacity. He did read the opinions that indicated he was psychologically able to return to work. However, Dr. Jaikaran's opinion was that if a patient, such as Mr. Allen, comes into his office crying indiscriminately, he could not successfully return to work.
Dr. Robert Notkin, psychiatrist, also testified. He examined Mr. Allen at Wawanesa's request, once, on January 20, 1998. He wrote a lengthy report which was filed as part of the joint medical brief. Dr. Notkin noted that he had no independent recollection of Mr. Allen, apart from his report. Dr. Notkin testified that at the outset of the interview Mr. Allen expressed anger at being forced to be there, but after he had vented this, he became more cooperative and was very pleasant, behaved appropriately, attended well and was logical and coherent in his presentation. Dr. Notkin thought any vagueness Mr. Allen displayed was part of Mr. Allen's personal style.
Dr. Notkin testified that he did not believe Mr. Allen had answered in a sarcastic tone to any of his questions, or he would have noted it. He appeared genuine to Dr. Notkin, although at times his answers were vague or contradictory. Dr. Notkin indicated that on seeing Mr. Allen 21 months after the accident, he did not appear to have suffered any major depressive episode. He felt Mr. Allen may have had transient depressive symptoms that did not meet the criteria for the formal diagnosis of a recognized psychiatric disorder. Mr. Allen did meet the definition of substance abuse disorder, however. Dr. Notkin testified that Mr. Allen could have met the diagnostic criteria for adjustment disorder, but did not when he interviewed him. Dr. Notkin thought Mr. Allen's responses to the Multidimensional Pain Inventory he administered showed that Mr. Allen was dealing with pain adaptively. Dr. Notkin did not find Mr. Allen was substantially unable to resume his former employment.
Dr. Notkin agreed on cross-examination that a patient suffering from pain could have difficulty in concentrating. Dr. Notkin did not have any reports or notes from Dr. John G. Platt, the psychologist who had been treating Mr. Allen in 1997. He would have been interested in learning more about that treatment, particularly since Mr. Allen did not describe it to him. He would also have been interested to know Dr. Hamilton's findings in 1996, since if they suggested a decline in cognitive levels, this would be consistent with the conclusions reached by Dr. Brooker in the 1997 psychological assessment at the designated assessment centre. Dr. Notkin also indicated he would have liked to question Mr. Allen more about his family relationships if it were true that he was not having a good relationship with his children. He would also have been interested to explore why Mr. Allen told him he had been spending family money on marijuana, if he had not. (Mr. Allen did state this to Dr. Notkin, according to Dr. Notkin's report and testimony, but this behaviour was denied by his former wife in her testimony at the arbitration.) Dr. Notkin also agreed he would have liked to go into more detail about Mr. Allen's relationship with his wife, if he had known about any verbal or physical abuse, because it could have been suggestive of a broader difficulty in coping with irritability beyond just difficulties between the spouses, although there could be many possible explanations.
Dr. Notkin agreed that a change in a pattern of substance use, like alcohol or drugs, could be secondary to pain, to depressive problems, to financial problems, or to marital problems. He testified it's a way one chooses to cope with a stress. He testified that some sufferers of chronic pain turn to drugs and others do not. It depends on personality traits and is more likely if there is a previous history of substance abuse. In addition, people with antisocial or borderline personality traits are more likely to turn to drugs.
DAC Assessment 1998
Wawanesa terminated Mr. Allen's weekly income replacement benefits as a result of the report of a designated assessment centre. The 1998 disability DAC was conducted over two days—May 13 and 14, 1998 in Oshawa. The physiotherapist and occupational therapist that conducted his functional testing felt Mr. Allen would meet all the essential physical demands of the contract coordinator, which were stated to be "minimal," except the requirement to lift up to 70 pounds, two to three times per month. The assessors found that Mr. Allen's overall work pace was "below competitive to entry level." They noted that Mr. Allen complained of intense and unbearable pain and headache pain following static lifting activities. The therapists were concerned about Mr. Allen's ability to "tolerate his pain, maintain concentration, and his ability to control his emotions." They believed these concerns would be addressed in the neuropsychological evaluation. The physical medicine specialist found Mr. Allen fit from a neuromuscular point of view to meet the physical demands of his job as a contract coordinator. He found Mr. Allen at times irritable and angry, emotionally labile and "easily provoked to anger with standard questioning during the history taking."
Much attention was focused at the hearing on the report of Dr. Barry Brooker, C.Psych., following on his neuropsychological assessment of Mr. Allen on May 14, 1998, as part of the disability DAC. Dr. Brooker had also assessed Mr. Allen about 11 months earlier. At the first assessment, he found Mr. Allen to be
completely disabled from returning to the performance of the essential duties of his previous employment as a contract coordinator. The pain and the psychological adjustment need to be substantially resolved before he could return to performing those essential tasks. Intellectually, he is capable of that work.
After the second assessment, Dr. Brooker's opinion changed. I will quote his exact words, because the language Dr. Brooker used is very important to the issue:
In general there has been some improvement in his coping with the chronic pain disorder. There had also been some improvement in his memory performance. There remain wide fluctuations in his cognitive performance on attentional tests despite his very good abstract thinking ability. He continues to suffer the effects of maladjustment to the limits imposed upon him by his injuries.
His continued use of or abuse of hash to solve his pain problems may well be exacerbating his emotional instability and cognitive efficiency.
In my opinion Mr. Allen is no longer completely disabled from returning to the performance of the essential duties of his previous employment as contract coordinator. In my opinion, furthermore, there remains the maladjustment to the pain disorder and cognitive inefficiency noted above. These are not sufficient to prevent him to return to his previous employment. However, there is I think merit in considering the final recommendations noted by Dr. Platt in his recent letter to help maintain him in return to work.
Dr. Brooker did not testify at the arbitration hearing. Two expert reports were filed relating to his testing and report. Mr. Allen filed the report of Dr. Karen Shue, C.Psych. and Wawanesa filed the report of Dr. Lorraine McFadden, C.Psych. Neither Dr. Shue nor Dr. McFadden had personally interviewed or tested Mr. Allen.
Unfortunately, Dr. Brooker's language in his 1998 opinion does not convey the information that in formulating his opinion he focused on the correct disability test. It is true that on the first page of his report, Dr. Brooker states the assessment question correctly. He writes that, "The assessment question is whether Mr. Allen is considered to be substantially disabled from completing the essential tasks of his employment of contract coordinator for the Defence Construction Canada." Thus, Dr. Brooker, at least at the outset of his report, should have understood his role was to assess whether Mr. Allen suffered from a substantial disability to perform the essential tasks of his job.
In his 1997 report, Dr. Brooker outlined what Mr. Allen told him about his job with DCC. The description recorded emphasized the inspection aspect of his job but touched on the aspects of monitoring workers' standards of performance and the necessity to "get along with people because he not only had to explain the contract specifications but confront some of the workers about the standards versus performance."
In 1998, Dr. Brooker observed some difference in Mr. Allen's presentation. He found him "less defensive and somewhat more cooperative." Dr. Brooker did note that Mr. Allen's affect varied rapidly in the assessment from pleasant to quizzical to mildly confrontative to somewhat sad. Dr. Brooker noted that Mr. Allen seemed to be showing a more balanced outlook, but that it tended to be a "fluctuation between a positive and a negative outlook rather than a blended sort of outlook." Dr. Brooker felt he seemed to be struggling to look at things in a positive way. He commented that this fit in with Dr. Platt's recent letter. (In his letter of May 13, 1998 Dr. Platt reported on the variance in Mr. Allen's psychological presentation from January to May 1998. He reported that at his last session, Mr. Allen's aspirations "have taken a positive turn with him now experiencing thoughts regarding a continued improvement in his physical functioning and a return to work, at least on a part time basis, possibly accompanied by further academics ...")
Dr. Brooker observed that Mr. Allen requested four or five breaks during the interview and testing. He noted some pain behaviour in Mr. Allen's getting up or shifting position and that towards the end of the assessment he complained of developing bilateral temporal head pain.
Dr. Brooker noted that Mr. Allen's expression of ideas was significantly poorly organized and seemed worse than in 1997. Dr. Brooker thought this mental inefficiency could be influenced by Mr. Allen's consumption of hashish and alcohol. Dr. Brooker noted that Mr. Allen was still highly emotionally reactive to his pain. He disagreed with Dr. Notkin's suggestion that Mr. Allen "adaptively copes with pain." He wrote:
this is not my perception of his clinical pain behaviours Indeed as part of the present assessment I repeated the pain inventory (MPI), and the profile is a mixture of dysfunctional adaptation to pain, and interpersonal distress.
Dr. Brooker found that on testing Mr. Allen had difficulty with speeded information processing, attention, concentration and memory. His verbal learning test scores had improved to the average range and his delayed recall of a word list was excellent. Still, Dr. Brooker noted there had been "no real change on some other tests," for example on a test of mental initiation, visual praxis, and attention. Dr. Brooker noted that his mental speed and concentration was low average to borderline and measured at slightly lower levels than in 1997. "In any case there is a notable drop off the longer he has to concentrate over short periods of time. This means that he can bring his mind to focus but not keep it there." Dr. Brooker observed attentional lapses, but found no indication that Mr. Allen was feigning any attentional problems.
Dr. Brooker found that on inventories of symptoms and emotions Mr. Allen continued to endorse a very high number of items. This suggested to him that Mr. Allen could suffer from "emotional or behavioural maladjustment which is coming out in bodily symptoms." He found Mr. Allen's responses on a pain adjective checklist indicated "high emotional reactivity to the pain symptoms."
By the end of his five-page report, however, Dr. Brooker’s conclusion is difficult to interpret, in the light of the Schedule's test, when the appropriate language was not used. It is clear that Dr. Brooker's conclusion was not an unequivocal endorsement of Mr. Allen's psychological fitness to return to work He used the language "no longer completely disabled," which has no place in this assessment, as it denotes a more stringent test. Dr. Brooker noted that Mr. Allen remained maladjusted to a pain disorder and still suffered from cognitive inefficiency. He went on to say, however, "These are not sufficient to prevent him to return to his previous employment." I am unable to understand from this statement that Dr. Brooker considered Mr. Allen substantially able to perform his essential tasks. He further qualified his opinion by stating that the "final recommendations noted by Dr. Platt in his recent letter" should be considered to "help maintain him in return to work. "
It is unclear what "final recommendations" Dr. Brooker meant. It may be he is referring to Dr. Platt's recommendation that he continue to see Mr. Allen at a reduced frequency until September 1998. He may also be referring obliquely to Mr. Allen’s statements to Dr. Platt on May 7, 1998 at which time he voiced the possibility of returning to part time work and taking courses at a community college in an area such as restoration work.
It is useful to juxtapose Dr. Brooker’s findings on testing in 1998 with Mr. Allen’s reported performance at a Career Opportunities Program which he began in July 1999. Mr. Allen attended for five weeks at this program, which ran daily from 9:00 a.m. to 3:00 p.m. with an hour's lunch break. He enrolled in the program at his own initiative. The Career Opportunities Program dealt with preparing resumes, conflict resolution, and the skills required to maintain a job. The program pushed its participants and focused on the client's ability—not disability.
Ms. Tanya Hunter, the project coordinator, testified that Mr. Allen put in a good effort at the program, but it was obvious to her that some days he was in pain, or heavily medicated, and found it difficult to focus. Ms. Hunter testified that on most days Mr. Allen left early. He was not able to tolerate a full day. She described emotional outbursts from Mr. Allen during the program over frustration with his inability to be as productive as he believed he could be. Ms. Hunter perceived that although he tried hard, she felt that anxieties, difficulties, and frustrations with his situation made it hard for Mr. Allen to be calm and rational.
The marketing representative for the Career Opportunities Program arranged for Mr. Allen to work for his previous employer, Geo-Logic, performing some asphalt testing in its lab in the evening. According to Ms. Hunter, Mr. Allen stopped working because he was in such pain that he couldn't pursue it any further. She spoke briefly with his employer, who thought he had made a good effort. Ms. Hunter felt the employer had been very accommodating and given Mr. Allen the lightest possible job. Mr. George Gunther, President of Geo-Logic, also testified about this trial of work. He testified that Mr. Allen was trying to work for three hours in the evening, carrying out testing of asphalt samples weighing seven kilograms, in a bowl weighing about seven kilograms. He characterized this work as physically less demanding than a field job. He understood that Mr. Allen found the lab work too draining and had problems with pain afterwards.
Ms. Hunter testified she never observed Mr. Allen under the influence of alcohol or smelled any residue from any illegal substance around him. She said that no staff member had raised with her any suspicions of him abusing alcohol or drugs, and they had experienced that with other clients in the past. She was surprised at the suggestion that Mr. Allen might have been smoking a joint of marijuana a day at this time. Ms. Hunter testified that some days she found Mr. Allen very sedate and calm, with somewhat glassy eyes, then other days he would be quite the opposite. Ms. Hunter felt his weeks working at Geo-Logic was a good experience for him to find out his limitations. Since then, Mr. Allen has been to see her from time to time and recently was sponsored to attend a multi-week evening computer course at Loyalist College. Ms. Hunter was not aware how Mr. Allen performed on that course, but he had only missed one class.
Other Reports
Mr. Allen filed the report of Dr. Karen L. Shue, C. Psych., dated April 17, 2000. Dr. Shue was critical of the lack of breadth of testing carried out by Dr. Brooker in the 1998 DAC assessment. She thought there were many areas relevant to Mr. Allen’s work performance in the area of "executive skills" that were not tested or even discussed. She felt many of the tests used were not valid predictors of "real life" work performance, for example in the area of memory testing. In addition, she found that some indicators of Mr. Allen's potential performance difficulties that were noted in the DAC reports were not incorporated into the conclusions. None of the testing included formal or structured evaluation of Mr. Allen's interpersonal skills, which appeared to be a key part of his job. No third parties were interviewed. Dr. Shue also felt that additional information was required to predict Mr. Allen's tolerance for cognitive "work."
Dr. Shue felt that the recommendations made by Dr. Hamilton in 1996 and Dr. Bernstein in 1997 should be carried out. It was not clear to her that Mr. Allen had even been treated through a cognitive-behavioural approach to managing his depression and anxiety or that he had received instruction on compensatory strategies for pain, memory challenges, and understanding new or complex verbal information. She thought that a gradual, structured return to work of the type described by Dr. Bernstein appeared appropriate in order for Mr. Allen to manage the emotional and pain-related factors interfering with his level of functioning.
Wawanesa presented a short report from Dr. Lorraine McFadden, C.Psych. She thought Dr. Shue had suggested an approach that might be appropriate for planning rehabilitation from acquired brain injury, but not from a psychological disability. I did not take from Dr. Shue's report that she believed Mr. Allen had suffered a brain injury. Dr. McFadden also criticizes Dr. Shue because of her criticism of Dr. Brooker's assessment "because it does not address return to work issues. ... Dr. Brooker did not address or answer the question of ability to return to work; I do not see that it was put to him." Dr. McFadden's report seems to accept Mr. Allen's disability on the basis of chronic Pain Disorder and an adjustment reaction, with cognitive impairment secondary to the pain disorder. She seemed to find it in order that his assessors had all recommended psychological treatment and gradual resumption of pre-accident activities. I did not find Dr. McFadden's report very helpful to determining whether in May 1998 Mr. Allen suffered a substantial inability to perform the essential tasks of his employment as a geotechnologist and contract coordinator, except to the extent that I understand that it supports the diagnoses of psychological distress, pain, depression, chronic pain disorder or adjustment reaction, leading to compromised cognitive function.
While he was living in Ottawa in mid-1998, Mr. Allen was seen by Dr. T. DeSouza, who referred him to Dr. Anna McCormick, Physiatrist, at St. Vincent Hospital to clarify if Mr. Allen had an acquired brain injury and thus, would meet the admission criteria of the Acquired Brain Injury Program at the Rehabilitation Centre. When Dr. McCormick interviewed Mr. Allen on September 1, 1998 she found him very focused on his neck and lower back pain. She found that he became frequently tearful during their meeting and expressed anger and frustration. Mr. Allen also complained about a diminished ability to concentrate, loss of focus, and difficulty making decisions. Dr. McCormick was of the view that Mr. Allen was presenting with a history and symptoms most suggestive of a chronic pain syndrome. She recommended referring him to the Chronic Pain service operated out of the Ottawa Rehabilitation Centre. She recommended Mr. Allen not drive and felt he could not return and function in the work place.
Mr. Allen was not scheduled to attend the Pain Clinic until January 1999. In the interim, he was seen by Dr. A. Wilson, a psychiatrist at the Royal Ottawa Hospital Addictions Service. On November 10, 1998 Dr. Wilson diagnosed Mr. Allen as suffering from chronic pain syndrome, either a major depression or adjustment disorder with depressed mood, and an adjustment disorder around his family and work. They discussed the effect of alcohol and drugs on pain threshold. Dr. Wilson also suggested that Dr. DeSouza prescribe Fluoxetine and Trazodone for Mr. Allen to decrease his irritability and stabilize his sleep pattern. Dr. Wilson also suggested that Mr. Allen resume a non-steroidal anti-inflammatory drug which he had tolerated in the past.
On January 5, 1999 Mr. Allen was seen in the Multidisciplinary Chronic Pain Clinic of the Rehabilitation Centre and evaluated by a specialist in physical medicine, a psychologist, a nurse, and a physiotherapist. By this time Mr. Allen reported having stopped smoking marijuana for about two months and also that he had dropped his use of alcohol to about once per month, three to five beer. The impression that Dr. U. Buenger, the physical medicine and rehabilitation specialist, recorded is that Mr. Allen appeared to be suffering from a longstanding pain problem that presented mostly as a muscular mechanical pain in the thoracic region, but with other areas also affected. He also, in concert with other members of the team, recommended that Mr. Allen begin using antidepressants drugs again and follow up with the psychologist in four to six weeks before returning to the Chronic Pain Clinic in three months. Dr. Buenger felt that Mr. Allen needed to have his depression under better control before he could participate in the Centre’s pain management program. Dr. Josie Marino, M.A., C.Psych. Assoc., the Staff Psychological Associate, felt that Mr. Allen suffered from chronic pain syndrome and a moderate level of depression. Both Dr. Buenger and Dr. Marino commented that Mr. Allen was angry with the idea of having to wait longer for interdisciplinary treatment of his chronic pain. Dr. Buenger noted that this expression of anger "would not really be appropriate in a pain management program which is based on cooperative learning in a group setting."
Conclusion
The question before me at this arbitration concerns Mr. Allen’s substantial ability to perform the key tasks of his employment as a contract coordinator for Defence Construction Canada, in May 1998 and ongoing.
Arbitrators are not called upon to diagnose an insured person's physical or psychological conditions. An arbitration focuses on an insured person's probable ability to function in the job and on the cause of his reported difficulties. Mr. Allen has been described by the professionals who have interviewed or treated him as a person who is not very psychologically minded. Thus, he has concentrated on his physical symptoms since the 1996 accident. Mr. Allen is also a person who used marijuana, hashish and alcohol recreationally prior to his accident and has used these substances since the accident, sometimes daily, in an effort to escape from pain.
Wawanesa attempted to portray Mr. Allen's ongoing problems as drug-related and not related to the effects of the 1996 accident. Wawanesa sought to paint Mr. Allen as a person who was on the brink of losing his job at the time of the accident and under significant stress. Wawanesa forgot, however, the evidence that Mr. Allen was expecting to be called back to work at Geo-Logic in June 1996, as indeed he was, but he was unable to take the job, because of the injuries he received in the accident. Wawanesa seemed as well to have ignored the evidence that, by all accounts, before the accident Mr. Allen was an easy going, hard-working, well-adjusted family man with everything to live for.
According to the medical and psychological professionals who have offered an opinion on the effect of his use of marijuana and hashish, Mr. Allen has not been doing his physical and psychological health any favours by his use of these drugs. His judgment in medicating himself has been faulty and has likely had a counterproductive effect on his recovery. However, the evidence on this point is far from sufficient or persuasive and authoritative enough to establish Mr. Allen's drug use as the effective cause of his problems and displace the effects of the motor vehicle accident as a significant or material contributor to his disability.
The psychologists and psychiatrists involved in treating and assessing Mr. Allen have noted that before the accident, he likely had the kind of personality features that predisposed him to developing the type of symptoms that he has shown after the accident. If that is true, then Mr. Allen falls into the category of the classic "thin-skulled" victim. It does not matter that another person would not have been affected by the accident in the same way or to the same extent as Mr. Allen.
Dr. Notkin examined Mr. Allen on January 20, 1998. Dr. Notkin is an expert in psychiatric assessment. He did not have copies of Mr. Allen's neuropsychological evaluation, an independent psychiatric evaluation, and pre and post motor vehicle accident clinical notes, which he wished to review to help sort out his impression of whether Mr. Allen had ever had a Major Depressive Episode since the accident. He also wanted more information to address the issue of the cause of Mr. Allen’s problems. Dr. Notkin was not able to ascribe a specific psychiatric diagnosis to Mr. Allen, but as I have described above, this is not the issue in this arbitration. Mr. Allen’s substantial ability to perform his essential job tasks is the issue.
Dr. Notkin's opinion was that Mr. Allen was not "substantially unable to resume his former employment" solely from a psychiatric point of view. He thought the difficulties Mr. Allen described at home in regards to his marital relationship could not be directly related to the motor vehicle accident. On the contrary, from the testimony of Mr. Allen, his former spouse, his father, and his friend, I find that the difficulties in his relationships at home sprang directly from his response to the injuries he suffered in the accident. Mr. Allen was in an optimistic phase when he was interviewed by Dr. Notkin. Dr. Platt described the phases Mr. Allen went through in early 1998 in his report of May 13, 1998. Mr. Allen's former spouse also described these phases of false optimism in her testimony. Dr. Notkin accepted Mr. Allen’s statements that he was able to control his irritability. I do not accept that Mr. Allen was able to control his emotions at that time. Dr. Notkin also felt, on the limited testing he described in his report, that Mr. Allen did not "show evidence of any cognitive difficulties." I find that Dr. Notkin did not explore that area in sufficient detail to determine that Mr. Allen was substantially able to perform his essential job tasks. Indeed, it is not at all clear to me what Dr. Notkin thought Mr. Allen’s essential job tasks were, from the very minimal description of Mr. Allen's entire job history, summarized in five sentences on page two of his report. Dr. Notkin was provided with none of the job description documents Voc-Care prepared with Mr. Haggerty in September 1996. This lack of attention to understanding Mr. Allen's job duties makes Dr. Notkin's opinion on Mr. Allen's ability to perform his essential tasks much less valuable.
I am not able to accept that the disability DAC in May 1998 reasonably concluded that Mr. Allen was able to substantially perform the essential tasks of his occupation at that time. Dr. Y.J. Park, Ms. Gillian Chivers, a physiotherapist, and Ms. Renée Leduc, an occupational therapist, all made comments about Mr. Allen's psychological issues in their physical examinations and testing of him on the day before Dr. Brooker assessed him psychologically. Dr. Park wrote that Mr. Allen was at times "irritable and angry. He appeared emotionally labile and was easily provoked to anger with standard questioning during the history taking." I take it that Dr. Brooker did not have the comments of his colleagues available when completing his report, because he makes no reference to their observations. Alternatively, if he was aware of their observations, he ignored them. In my view this deficiency critically diminishes the value of Dr. Brooker's opinion because the observations made by his colleagues reasonably predict how Mr. Allen could react in stressful job situations. In order to be substantially able to perform his essential tasks he would have to be able to "tolerate his pain, maintain concentration," and reasonably "control his emotions," all of which were concerns raised by the DAC assessors.
From Dr. Brooker's language I cannot grasp what standard he thought Mr. Allen had to meet in order to be considered still disabled. In addition, in my view, his conclusions about Mr. Allen's abilities are not well supported by the comments in the body of his report. Dr. Brooker noted the variability of Mr. Allen's mood over the course of the interview. He was aware of "significantly poor organization in the expression of his ideas." Mr. Allen continued to have a highly reactive response to his pain and Dr. Brooker disagreed with Dr. Notkin that he showed adaptive coping behaviour. Dr. Brooker found Mr. Allen's profile to be a mixture of dysfunctional adaptation to pain and interpersonal distress. Mr. Allen scored the same on some tests as in 1997 (when Dr. Brooker found him disabled), and Dr. Brooker noted his problems with attention the longer he had to concentrate. Mr. Allen also endorsed more severe and more frequent symptoms than previously when completing symptom and emotional testing.
Mr. Allen held a responsible position at the time of the accident. He required good communication and technical skills to be the "eyes and ears" of the corporation in monitoring expensive watermain and sewer construction.
In my view, in May 1998 Mr. Allen had not reached the stage in his recovery after the accident that he could successfully return to work and substantially perform his essential tasks. He still has not reached that point. He requires more treatment with the help of a professional that he trusts is acting in his best interests. Mr. Allen seems to have been developing this relationship with Dr. Jaikaran.
For these reasons I conclude that Mr. Allen is entitled to ongoing income replacement benefits from June 6, 1998 and that Wawanesa should deliver to him an offer for loss of earning capacity benefits.
EXPENSES:
The parties did not inform me that they sought to have an Offer to Settle or a Response to an Offer to Settle considered in connection with an award of expenses. I have considered the criteria for the awarding of expenses set out in section 12 of Regulation 664 of the Revised Regulations of Ontario 1990, as amended by Regulation 464/96. Mr. Allen has been successful in this arbitration. I find he is entitled to his expenses, as agreed or assessed.
June 29, 2000
K. Julaine Palmer Arbitrator
Date
Neutral Citation: 2000 ONFSCDRS 119
FSCO A99–000517
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
DANIEL J. ALLEN
Applicant
and
WAWANESA 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:
Wawanesa Mutual Insurance Company shall pay Mr. Allen income replacement benefits from June 6, 1998, ongoing, plus interest as set out in section 68 of the Schedule, until it fulfills its obligations under Part VI of the Schedule regarding payment of loss of earning capacity benefits.
Wawanesa Mutual Insurance Company shall deliver to Mr. Allen a written offer with respect to the payment of weekly loss of earning capacity benefits, as set out in section 21 and following of the Schedule.
Wawanesa Mutual Insurance Company shall pay Mr. Allen his expenses of the arbitration, as agreed or assessed.
June 29, 2000
K. Julaine Palmer Arbitrator
Date
Footnotes
- The 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.