Neutral Citation: 2000 ONFSCDRS 41

FSCO A98-000446

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

HOSSEIN LOUVARZ

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David J. Evans

Heard:

November 29 and 30 and December 1, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Michael Krylov, articling student, for Mr. Louvarz

D'Arcy McGoey for Dominion of Canada General Insurance Company

Issues:

The Applicant, Hossein Louvarz, was injured in a motor vehicle accident on March 1, 1997. He applied for and received statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule.¹ Dominion terminated weekly income replacement benefits ("IRBs") on September 11, 1997. The parties were unable to resolve their disputes through mediation, and Mr. Louvarz 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. Louvarz entitled to receive weekly IRBs from September 11, 1997 to approximately mid-February 1999 pursuant to section 4 of the Schedule?

2. Is Mr. Louvarz entitled to receive a medical benefit for prescription medications, a knee splint, and physiotherapy treatment from Metro Ortho Rehab, claimed pursuant to section 14 of the Schedule?

3. Is Mr. Louvarz entitled to receive the cost of examinations under section 24 of the Schedule?

4. Is Mr. Louvarz entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?

5. Is Dominion liable to pay Mr. Louvarz's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

6. Is Mr. Louvarz liable to pay Dominion's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Mr. Louvarz also claims interest on any amounts outstanding.

Result:

1. Mr. Louvarz is entitled to receive weekly IRBs from July 31, 1998 for a period of eight weeks pursuant to section 4 of the Schedule.

2. Mr. Louvarz is not entitled to receive any medical benefits claimed pursuant to section 14 of the Schedule.

3. Mr. Louvarz is entitled to receive $75 for the cost of examinations under section 24 of the Schedule.

4. Mr. Louvarz is not entitled to payments for housekeeping and home maintenance services claimed pursuant to section 22 of the Schedule.

5. The issue of expenses was deferred.

6. Mr. Louvarz is entitled to interest on any amounts outstanding.

EVIDENCE AND ANALYSIS:

Mr. Louvarz testified that he was born in Iran on January 5, 1969, and immigrated to Canada in the latter part of 1995 to further his education and to continue his interest in wrestling. Shortly after arriving, he moved into shared accommodations at 77 Davisville Ave. At the time of the accident, he was living with Hamid Naybzade-Gogani and "Reza."² They continued sharing accommodations until the end of July 1997.

Mr. Louvarz initially attended English as a Second Language ("ESL") courses and later took high school courses in mathematics and computers. The schooling was free; he paid for the rent with money he brought with him and later with social assistance.

Mr. Louvarz found part-time work at a carpet store during the school week and at a bakery on weekends (Mr. Louvarz testified very little about the bakery job, and his claim is not based on it). He could not remember the carpet store's name; the Employer's Confirmation of Income form dated April 30, 1997 indicates that the employer was Gabbeh Persian Rug. He attended school from the morning until 3:00 or 3:30 p.m., and then worked at the carpet store as long as he was needed, usually until closing around 7:30 or 8:00 p.m. Sometimes he left work early and worked shorter hours; other times he left school early and worked longer hours.

Mr. Louvarz testified he was hired at the carpet store because he speaks Persian and knows something about carpets, such as whether they are handmade or machine-made. The store had a basement as its lower level and a main floor showroom; sometimes he moved carpets from one floor to the other. It does not appear to have been a large store, as Mr. Louvarz described the showroom as being about three times the size of the small hearing room in which we held the hearing. He sat in a chair or behind the cash waiting for customers; the store was not that busy in the daytime. The owner would usually talk to the customers first and Mr. Louvarz would assist. If the owner was busy, Mr. Louvarz dealt directly with customers, asking what kind of carpets they were seeking and then displaying them. Carpets could be on the walls, and he might have to take them down; otherwise, they would be stacked on the floor, in which case he would have to remove and set aside the top ones to reach the carpet he was seeking. After a purchase, he would kneel and roll up the carpet, first cutting it if it was very large. He would then put the carpet over his shoulder and take it out to the buyer's car, tying it to the roof if the car was small. He was able to carry carpets weighing 50 to 60 pounds; he needed help with heavier carpets weighing 100 pounds. He did not have to lift carpets every night, but then the owner would keep him busy with something else, such as changing the decoration. At the end of the day he would bring in the external display carpets, unrolled. Mr. Louvarz could not estimate the number of carpets sold in a day nor their average weight.

Mr. Louvarz testified that he had been working at the carpet store about five months when the accident occurred. On March 1, 1997, he was waiting at a traffic light when a taxi struck his car from behind and pushed it into the intersection. The impact broke the driver's seat. The first thing that bothered him was his knees. He felt dizzy and confused, and his eyes were "flashing" for about a half hour. He also had back pain, and he may have vomited. The taxi left the scene, although he obtained the plate number. His vehicle was still drivable, so he continued his trip to his friend's house where he was given Tylenol.

Mr. Louvarz testified that the next day he felt worse, his whole body hurt, and his knees were swollen. He did not go to a hospital but arranged to see his family physician, Dr. Majid Boozary. The first post-accident visit to Dr. Boozary was on March 12, 1997; a lumbar x-ray taken that day was normal, as was a perfusion brain scan performed March 25, 1997. Dr. Boozary arranged for chiropractic and psychiatric treatment as well as physiotherapy. Within a few months he felt better, as his neck, back and shoulder pain improved, but he continued to have problems with his knees until after they were operated on in the summer of 1998. Some nights he vomited, although it was not clear to him if that was due to the medications such as the muscle relaxants he was prescribed or due to the food.

Mr. Louvarz testified that the accident affected him emotionally. He felt like a "stupid person" with a "bad life," and he lost his friends because he fought with them or because they thought he would be asking them for money (he did borrow money from one friend). He had memory and concentration problems and sometimes he felt like he wanted to commit suicide. His memory has improved since he married his wife. (He met her in April 1998, and they married in January 1999.)

Mr. Louvarz testified that he tried two or three times to return to school but then stopped. A teacher had asked him what happened, and at the end of the class told him it would be better to go home and rest. On another occasion, he felt dizzy and he asked the teacher about taking his medication. He also testified: "Maybe they kicked me out." He has not passed his Test of English as a Foreign Language. He did not try returning to work; he went back to the carpet store, but as he was not walking very well, the owner asked what had happened and told him to rest. Mr. Louvarz never saw him again; the owner did not testify. He did not return to the bakery after the accident.

Mr. Louvarz testified that he needed housekeeping help after the accident. The roommates had taken turns cleaning the apartment, but he could not do his duties after the accident. Mr. Naybzade-Gogani took over the cooking, cleaning, vacuuming and laundry that Mr. Louvarz would normally have done when it was his turn. Mr. Naybzade-Gogani sometimes drove him for treatment, but other times Mr. Louvarz went on his own or took a taxi. He paid Mr. Naybzade-Gogani for these duties for as long as they were needed, which he described as no more than a few months.

An adjuster attended at Mr. Louvarz's apartment with a translator on April 8, 1997 to take a statement from him. The statement indicates that Mr. Louvarz could not do as much housework as before and was receiving some assistance from his roommate, although he had not paid or hired anyone to do anything for him. On the Activities of Daily Living log sheet, it is indicated that Mr. Louvarz could continue to perform most household activities unassisted, needing assistance only with cleaning the bathrooms. Mr. Louvarz testified that he disagreed with the log sheet.

On April 9, 1997, Dr. Boozary indicated on the Disability Certificate that Mr. Louvarz did not suffer an impairment preventing him "from performing pre-accident housekeeping and/or home maintenance activities." Dr. Boozary also indicated that Mr. Louvarz was suffering from upper and lower back strain, post-traumatic headaches and whiplash-associated disorder. He was restricted from heavy lifting and prolonged sitting.

Mr. Louvarz presented an Application for Expenses dated August 20, 1997, for housekeeping and attendant care totalling $4,400 through July 3, 1997. Mr. Louvarz testified that Reza typed up the details. However, during cross-examination Mr. Louvarz was presented with Mr. Naybzade-Gogani's statement, the person who allegedly performed the housework and attendant care, indicating that Mr. Naybzade-Gogani only received a total of $2,400 for the period up to May 5, 1997. Mr. Louvarz testified that although he had paid the higher amount, he had "broken up" with Mr. Naybzade-Gogani, who was no longer his friend for reasons he did not want to explain, and so he reduced his claim to $2,400 because he had no receipt. He did not call Mr. Naybzade-Gogani.

Dr. Boozary had referred Mr. Louvarz for several investigations. Knee x-rays taken April 17 and May 5, 1997 showed no obvious fracture or dislocation but did suggest faint bone fragments to the upper tibial plateau on both sides, slightly more prominent on the left, that could have been the result of repeated subclinical trauma. A bone scan of the knees taken June 13, 1997, suggested that there could be a ligamentous tear at the upper border of the right patella. The finding in the lateral tibial plateau of the left knee was compatible with a stress fracture.

On May 20, 1997, Dr. John D. Graham, orthopaedic surgeon, wrote to Dr. Boozary that Mr. Louvarz hit his knees on the dashboard in the accident, leaving them sore and making it difficult for him to return to his normal sports such as wrestling and weight lifting. Dr. Graham diagnosed a "reactivated Osgood-Schlatter's disease," as the x-rays showed fragmented ossification in the tibial tubercles, the hallmark of the disease, along with enlargement in that area, especially on the left. He felt that nothing further could be done "except to protect the knees from further trauma and wait until the process settles down, which it will do in the normal course of events."

On May 22, 1997, Dr. Alborz Oshidari, physiatrist, examined Mr. Louvarz's knees and found nothing remarkable except reported anterior tenderness. Neurological examination was also unremarkable, but he recommended a referral to a neuropsychologist with regard to Mr. Louvarz's memory loss. He concluded: "After 4 weeks of physiotherapy, he should be able to participate in modified/light duty activities or at least return to college."

Dr. Oshidari saw Mr. Louvarz again on July 10, 1997, at which time he reported pain-free days in his neck and back and only intermittent knee pain during activity. Dr. Oshidari recommended a home exercise programme and aquatic therapy. Mr. Louvarz complained of his poor memory, stating that on one occasion he was not able to find his car that he had parked. Dr. Oshidari suggested a psychologist review him to rule out cognitive involvement, but he believed that the majority of his symptoms were psychosomatic. He also noticed more prominence of the tibial tuberosity and wrote: "Even the results of the bone scan mentioned the possibility of a stress fracture; however, I believe it corresponds more to Osgood-Schlatter Disease." He recommended that Mr. Louvarz be patient and let natural healing take place.

Both Dr. Graham and Dr. Oshidari thus diagnosed Osgood-Schlatter disease.

Mr. Louvarz testified that on May 27, 1997, he was having a shower when a snake came out of a hole in the wall and surprised him; it did not bite him. He was screaming and yelling, and his friends called 911, animal control, the police, the ambulance and the landlord. Mr. Louvarz was taken to the Sunnybrook Health Science Centre. The emergency report indicates that at 12:20 p.m. Mr. Louvarz was crying, hyperventilating and shaking. At 13:15 he was not verbalizing but was obeying commands, and after a walk he returned verbalizing appropriate shock. He was counselled in stress and released at 14:15 with the diagnosis of post-traumatic stress disorder.

Dr. Boozary's notes indicate that after this incident Mr. Louvarz was complaining of nightmares about the snake. On June 18, 1997, Dr. Boozary diagnosed severe post traumatic stress disorder and panic attacks and referred Mr. Louvarz to Dr. Mahvash Elmpak, psychologist.

On June 28, 1997, Dr. Elmpak wrote to Dr. Boozary recommending 10 to 12 treatments using a cognitive-behavioural approach with a focus on systematic desensitization to resolve Mr. Louvarz's anxiety-related symptoms and problematic thinking.

Dr. Boozary's notes contain several other references in the following months to nightmares and panic attacks, and he repeats the diagnosis of post-traumatic stress disorder on October 14, 1997. Although in his medical-legal report dated December 2, 1997, Dr. Boozary diagnosed both physical and psychological disability (he considered the main disability condition to be psychological), Dr. Boozary's treatment summary only indicated "severe symptoms of post traumatic stress disorder" after the snake in the shower incident.

Dominion sent Mr. Louvarz to several insurer examinations at Assessment Works of North York Inc. ("AW") in July 1997. Dr. Edward English, orthopaedic surgeon, in his AW report of August 12, 1997 noted that on July 25, 1997 Mr. Louvarz had very prominent tibial tubercles, the left larger than the right. Nonetheless, he concluded that the possible compression fractures to the tubercles would heal without long term problems. He felt that Mr. Louvarz could resume his pre-accident activities with minimal restriction and found no permanent disability due to the motor vehicle accident.

Ms. Christine Rupert, occupational therapist at AW, wrote a functional capacities evaluation ("FCE") report dated July 30, 1997, based on tests carried out over the previous two days. I will deal with her testimony in more detail below. Briefly, she found that Mr. Louvarz demonstrated uncooperative behaviour and a self-limited performance, making it difficult to assess his true physical abilities. She believed he could do more than what he demonstrated. She concluded that he could function at school and at work, tasks that she considered to be sedentary to light in nature.

Dr. Howard Waiser, psychologist at AW, reported on August 13, 1997, as follows:

[Mr. Louvarz] alleges that he has experienced significant emotional changes as a result of this mishap characterized by chronic headaches and clinical depression with many of the symptoms that are characteristic of post traumatic disorders. While there is no doubt that the accident was traumatic for him and that he is experiencing some post traumatic distress, one must question the degree to which Mr. Louvarz is presently experiencing these difficulties. It is the opinion of this assessor that while he does experience distress as a result of the accident, it is not to the degree that he would want others to believe. Rather his level of distress is less so than that which he presents.

Dr. Waiser based these conclusions in part on Mr. Louvarz's presentation, which was inconsistent with his very poor scores on the Beck Depression and Beck Anxiety Inventories. Furthermore, although Mr. Louvarz claimed he could only exercise to a limited extent, he appeared quite fit, and although he talked of pain, he did not exhibit any pain behaviours as they spoke but only when he stood up to leave. Mr. Louvarz also claimed not to remember the date he came to Canada nor the schools where he attended his ESL program, although in Dr. Waiser's experience this information is usually well ingrained, leading him to question the credibility of Mr. Louvarz's memory loss. He recommended six sessions with a Persian-speaking counsellor to help him understand the dynamics of the cultural integration process. He did not consider Mr. Louvarz disabled with respect to his pre-accident activities.

Based on these reports, Dominion terminated Mr. Louvarz's IRBs but funded counselling with Dr. Elmpak.

On October 1, 1997, Dr. Elmpak reported that she saw Mr. Louvarz in seven sessions dealing with his post-traumatic stress disorder and depression and not the cultural integration process. She was trying to make him more self-reliant. Regarding the accident, she wrote that his "unique personality, response style to trauma, age and life situation" were determining factors to his reactions to trauma: "He has to learn to effectively cope and adapt to trauma such as a motor vehicle accident without falling apart." She thought an additional four to five sessions would be sufficient. As for her prognosis, she wrote: "Ultimately, it is Mr. Louvarz who will decide whether he wants to return to his pre-accident level of psychological functioning." However, in her discharge summary of November 19, 1997, she noted that although Mr. Louvarz had been improving, in the last several sessions his previously made gains seemed to reverse themselves. Independent maintenance and stabilization had not been achieved, and he presented as very fragile and in need of further treatment. Mr. Louvarz testified regarding Dr. Elmpak's treatment: "She's not anyone, she gave me three treatments."

Mr. Louvarz disputed the termination of his benefits. As part of the resulting mediation and subsequent pre-hearing process, Dominion requested on several occasions information regarding Mr. Louvarz's post-accident employment. Dominion was not advised until shortly before the hearing that Mr. Louvarz worked as a courier in the autumn of 1997.

Mr. Louvarz testified that he did not know that he had to report his income to Dominion after the termination of benefits. He found a job in late 1997 as a courier. He earned between $300 and $400 over approximately 10 days, but he did not necessarily work full days. On the first day, he got lost when he went to pick up a package. He also felt dizzy on occasion, sometimes resting in his car for several hours before continuing.

Mr. Louvarz testified that he once fell and broke his glasses at the Fairview Mall near his physiotherapy treatment. He was walking on an escalator that was not moving because it was broken, and the next thing he remembers is a man standing over him. The clinical notes and records of Dr. Boozary reflect that on a separate occasion, September 30, 1997, Mr. Louvarz complained that he had fallen the day before at a park and broke his glasses. (Mr. Louvarz may have understandably become confused about when he broke his glasses.)

Dr. Boozary referred Mr. Louvarz to Dr. Ayoob Mossanen, neurologist. Dr. Mossanen reported on November 5, 1997 that Mr. Louvarz had post-traumatic migraine headaches, but that his amnesia and lack of concentration probably constituted anxiety, as it was unlikely that Mr. Louvarz suffered any brain damage causing his poor concentration and lack of memory.

Nonetheless, Dr. Mossanen ordered several different brain scans, most of which were normal. The one unusual result occurred during the E.E.G. test Dr. Mossanen conducted on December 19, 1997. During photic stimulation, Mr. Louvarz became unresponsive verbally and looked vacant. He recovered an hour later and was amnesic about the episode. Dr. Mossanen reported back to Dr. Boozary on January 12, 1998 that it was possible Mr. Louvarz had a seizure induced by the photic stimulation. (On this point, Dr. Boozary made a note on January 22, 1998, that the EEG was abnormal but not diagnostic.) The CT scan result showed no abnormality. Dr. Mossanen injected Mr. Louvarz's neck with nerve blocks to control the headaches. On March 23, 1998, he reported that Mr. Louvarz's headaches were definitely helped by the nerve blocks, but he had "vague symptoms about his body being limp" and still complained of memory disturbance "in the sense that he forgets what he has set out to do." He suggested a neuropsychological test to rule out organicity.

In November 1997, Dominion sent Mr. Louvarz for an insurer's examination with Dr. Donald Young, psychologist, who wrote a report dated December 3, 1997. I will discuss the report in more detail below. I note at this point Dr. Young's testimony that Mr. Louvarz had produced the greatest number of incorrect responses on a specific test that he had ever seen: only 20 percent accuracy on two of three trials in a test where completely random responses would produce results near 50 per cent (which Mr. Louvarz achieved on the remaining trial) and where even people suffering from Alzheimer's, manic depression, or brain damage will typically reach 90 percent accuracy.

Dr. Boozary's notes show that on December 16, 1997, Mr. Louvarz was complaining that his panic attacks were worsening and that he could not drive. However, on January 16, 17, 18, and 21, 1998, and on February 6, 7 and 8, 1998, Mr. Louvarz was observed working at Swiss Chalet in the evening delivering food by automobile. On the last three occasions, he worked 5, 5.5 and 3.3 hours, hours that I find were in the range of those he worked at the carpet store. On February 9, 1998, Dr. Boozary's notes show that Mr. Louvarz continued to complain of insomnia. He felt he had nearly lost his mind, he could not work with his computer or at school, and he could not learn anything or concentrate. I find these reports to Dr. Boozary inconsistent with Mr. Louvarz's observed activities.

Mr. Louvarz testified that he was looking for work around that time but did not tell his lawyers. He worked at Swiss Chalet less than 10 days over a period of more than a month in January and February 1998. (Mr. Louvarz only admitted the work at Swiss Chalet after Dominion forwarded the surveillance tapes to his lawyers shortly before the hearing.) A friend of his worked there and helped him get the job. He received $5 per hour plus an extra $1.50 if he took more than one order, and tips. He lost his job when the supervisor saw him with his pants down while showing his knee problems to another driver. Shortly afterwards, Mr. Louvarz applied for and started receiving social assistance. Mr. Louvarz never reported the post-accident income to Revenue Canada or to Dominion. For that matter, Mr. Louvarz testified that he has still not reported his pre-accident income at the carpet store to Revenue Canada.

Despite his work as a courier and at Swiss Chalet, Mr. Louvarz testified that his psychological problems caused him difficulty in driving. On one occasion, while driving to see a doctor, he felt dizzy and scared, put his signals on, and parked beside the highway to wait for a tow truck. Dr. Boozary's notes show that on December 4, 1997, Mr. Louvarz reported receiving traffic tickets and had stopped on highways due to his fear. Mr. Louvarz also reported this incident to Dr. Mostafa Showraki on February 25, 1998. Dr. Showraki wrote to Dr. Boozary that he was concerned about Mr. Louvarz's ability to drive and asked him and Dr. Mossanen to assess Mr. Louvarz's driving ability and report to the Ministry of Transportation if necessary. However, Dr. Showraki only saw Mr. Louvarz once more, on March 6, 1998, and on August 31, 1998, he wrote to Mr. Louvarz's lawyers as follows: "Unfortunately I have not seen Mr. Louvarz since our last session; I have to stress with the poor compliance of the patient towards treatment, his prognosis is guarded."

At approximately the same time, Mr. Louvarz underwent the last of his neurological exams. Dr. Boozary referred him to Dr. Richard M. Gladstone, who first conducted an EEG examination on August 27, 1998. During the strobe activation Mr. Louvarz became unresponsive and started hyperventilating and sweating, so Dr. Gladstone terminated the exam and sent him by ambulance to the emergency department. However, no medical evidence links these attacks to the accident. In his report to Dr. Boozary dated October 9, 1998, Dr. Gladstone reports that Mr. Louvarz had "total amnesia" about the accident and could not even say if he was taken to the hospital. Dr. Gladstone spent a considerable amount of time with Mr. Louvarz obtaining his confidence, and he eventually revealed that "he has not been able to live up to his expectations of the success he enjoyed in Iran" where he had achieved prominence as a champion and later a professional wrestler. Mr. Louvarz also reported his various problems while driving and his fall at the Fairview Mall (events that had occurred approximately one year earlier by this point). His general physical and neurological examination was normal. Dr. Gladstone suggested some other investigations, but these do not appear to have occurred.

Mr. Louvarz underwent surgery for his physical problems. On February 19, 1998, Mr. Louvarz attended a functional capacity evaluation at Canada's Accident Rehab Group Inc. ("CARG") where he was noted to transfer weight from his left to his right leg. The lifting demands of the job were listed as ranging from 20 to 80 pounds. The recommendations included further examination of his knees, especially the left, followed by eight weeks of work hardening and then a graduated return to work over three to four weeks beginning with five half days the first week. (I note that this beginning level would be approximately the amount he was working at the carpet store in any event.) Although the report does not specifically refer to it, the chart for consistency of effort in the report indicates that heart rates recorded for the heaviest loads utilized were not consistent with a maximal or near maximal effort. Furthermore, I find that Mr. Louvarz's complaints of low back pain and neck, shoulder and upper back pain along with the knee pain are inconsistent with his testimony that within a few months of the accident he was better except for his knees.

Dr. Boozary then referred Mr. Louvarz to Dr. Javad Sattarian, orthopaedic surgeon, for the bilateral knee pain. On March 5, 1998, Dr. Sattarian reported that Mr. Louvarz had severe pain and crepitation with grinding of the patella against the femur. He suggested a bone scan and a possible arthroscopy. He suspected damage to the articular surface of the joint that cartilage shaving should relieve. Dr. Sattarian then performed an arthroscopy of the left knee and a debridement of the medial compartment on July 31, 1998.

Mrs. Kyungmi Louvarz testified that she was Mr. Louvarz's girlfriend at the time of the knee operation and that she assisted him afterwards. She met Mr. Louvarz at a restaurant in April 1998. Afterwards, he called her and took her driving and to the movies. On their second date, she told him that she preferred to walk instead of going for long drives, so they went to the beach. After 10 or 15 minutes of walking, he asked if they could sit. They found a bench under a tree where he "touched" his legs. (Mrs. Louvarz's English was not good, but from her manner and actions I assume that she meant he was rubbing his legs.) She gave him some Tylenol for the pain. She often observed him rubbing his legs in a similar manner afterwards. She did not feel comfortable asking him why he did that, nor did she ask if he was working. They usually met in the evening around 7:00 or 8 p.m. because she was going to school during the day. She assumed he was also a student, although he never told her that. He never told her that he had worked at Swiss Chalet. In June, she wanted to know if he was her boyfriend, and he said yes, but he still did not answer her when she asked what was wrong with him. At around the same time, he bought her a dog. She liked taking it for walks and so would encourage Mr. Louvarz to come with her, but he could not go far before turning back home after 10 or 20 minutes. He then told her about the accident.

Mrs. Louvarz testified that after the surgery she looked after him. He could not do anything the first week, but he started to improve in the second week. She did the shopping for him using her own money. She was supposed to start school as a paramedic that fall, but she could not pay, as she had spent her money on the shopping and the rent. Around October 1998, Mr. Louvarz asked her to marry him. She asked him what he was doing during the daytime, and he told her he had been working with his friend Reza for a few weeks, but she did not ask what he was doing or how much he was making. They married on January 5, 1999. Approximately one month later, she told him that they had to think about their future, that she had to continue at school, and that he should look for work. After about two weeks he found full-time work at a seafood place.

I note that for scheduling reasons, I had allowed Mrs. Louvarz to testify first. When she reached the point in her testimony regarding Mr. Louvarz's activities around the time of their engagement, he became so agitated that I had to ask him to leave the hearing room.

Mr. Louvarz testified that he met his future wife in April 1998. He again became agitated and talked loudly when testifying why he did not tell her about the accident. He did not want her to know that he was not working, and he was trying to show her that he was educated, explaining why she thought he was a student. He was reluctant to tell her about the problems he had walking. As for the surgery, his pain was much better after the first few weeks. However, he testified that he was not working before their engagement; he had made up an excuse to her to explain what he was doing during the day, and he did not want to tell her he was always seeing doctors. He was ashamed to tell her he was receiving social assistance and she was asking him how he received money. He was not comfortable telling her anything, and he needed somebody to help him, as he had no parents or friends. After the surgery, he received social assistance, but he never told her he received it. As for the dog, he pretended to her that it was expensive, but he obtained it at a shelter. He started looking in the newspaper for jobs about one month after they married, and after two weeks he found work at a fish processing plant, so he put his date of return to work around February 14, 1999. He scales, cuts and packs fish up to 50 hours a week. He feels fine now.

Expert Witnesses:

Christine Rupert

Ms. Rupert testified that she had been an occupational therapist since 1992 and has worked in the automobile insurance field since 1994. She wrote the AW functional capacities evaluation report dated July 30, 1997, based on two days of testing; she conducted the tests on the first day (July 28) and Fauna Lidsky, physiotherapist and occupational therapist, conducted the tests on the second day (July 29). The first day was a three to four hour examination, and the second day was a consistency check. During the testing, Mr. Louvarz was aided by a Persian-speaking interpreter. She concluded that Mr. Louvarz could resume his work and school activities.

Ms. Rupert testified that her assessment was based on the Isernhagen Work Systems; this format does not rely on machine-oriented protocols for determining sincerity. Instead, she looked for but did not see objective signs of maximum exertion such as widening of Mr. Louvarz's feet for balance. He was only observed to grimace once, during the horizontal lift of 38.5 pounds.

Ms. Rupert testified that based on her interview with Mr. Louvarz she understood he worked mainly as a sales clerk at the carpet store part-time after school. She had no notation that he lifted weights greater than 20 pounds; she would have made such a notation if Mr. Louvarz had told her so. She wrote that he demonstrated uncooperative behaviour; she testified that Mr. Louvarz quit the tasks even with the offer of rest. This self-limited performance was consistent over the two days. She noted pain behaviour, in that he reported pain even at rest while not exerting himself and also when lifting a one-pound crate. Mr. Louvarz also demonstrated guarded and awkward movement through the testing.

Under significant abilities, Ms. Rupert testified that although squatting increased his low back pain, he was able to lift 20 pounds using a modified squat position (lifting a crate from a second crate). He was able to lift 20 pounds horizontally and overhead waist to eye. He was able to carry, push and pull at the light-medium industrial strength level, which she testified was 20-50 pounds. Although Mr. Louvarz did not tell her that he had to roll up carpets, she knew it would be part of the job and she factored that into this comment. His grip strength was normal, and his sitting tolerance was 35 minutes and standing tolerance was 45 minutes.

Under significant deficits, Mr. Louvarz reported being unable to complete elevated work, forward bending while standing or trunk rotation due to reported headaches, dizziness and nausea, so these were not tested. These problems limited testing in other areas as well, but on the second day walking, stair climbing and kneeling were tested, with the last two items also limited due to reported dizziness and nausea. Crouching and repetitive squatting were not tested. She testified that he reported some discomfort while walking.

Ms. Rupert testified that Mr. Louvarz demonstrated ranges of motion within the normal limits. The chart at the end of her report sets out the tests performed. Forward bending/sitting, crawling, step ladder climbing and balancing were not tested (indicated as "N.T." in the reports). The chart shows that she could not comment on several tasks such as, for instance, kneeling, because Mr. Louvarz declined attempting the task. Ms. Rupert testified that, in fact, on the second day Mr. Louvarz attempted kneeling for 10 seconds and then stopped; she could not comment further, as she was not there to observe whether he entered the kneel without a chair to support him (in which case he should have been able to squat).

In her report, Ms. Rupert comments that Mr. Louvarz's demonstrated physical limitations in trunk flexion, standing and low level positions would prevent him from performing the physical demands of his pre-accident job. At the same time, she stated that his demonstrated abilities would meet his work and school demands if he monitored his position changes. She testified that she felt he could work at a greater level than he demonstrated and that he could modify or adjust his movements to do the job. She explained this contradiction by stating that there should have been a sentence showing what these modifications would have been. The modifications would have involved the position of items that he would have to pick up, but she did not know if one could modify rolling up a carpet. As for moving carpets, that work could have been shared.

Dr. Donald Young

Dr. Donald Young, psychologist, wrote a report dated December 3, 1997, regarding testing on Mr. Louvarz carried out November 12 and 17, 1997. He noted that Mr. Louvarz began the interview in a seemingly dazed state, snapped out of it instantly after Dr. Young introduced himself, repeated the behaviour after the first few questions and then ceased. Otherwise, he demonstrated normal thought content and form. In Dr. Young's opinion, these "absences" were inconsistent, unconvincing and not indicative of any neurological disorder Dr. Young had ever seen from a legitimately impaired patient. In his concluding test results, Dr. Young wrote:

[A]ll neuropsychological tests were performed at a level indicative of a massive head injury characterized by mental retardation, near total amnesia and a severe compromise of all other cognitive functioning. . . Symptom exaggeration was prominent. A specific technique designed to detect willfully motivated poor results was positive at a level of probability in the realm of several thousand to one. It is thus extremely difficult to interpret this data as anything other than a malingered act.

(The "specific technique" is the TOMM test, discussed below). Dr. Young concluded that no disability had been demonstrated in the cognitive or psychological realm.

Dr. Young was accepted as an expert in psychology with an interest in neuropsychology and the diagnosis of malingering, which he described as the intentional production of bad or negative results. He testified that among the tests administered was the TOMM test, the test of memory malingering. Subjects review 50 stimulus cards with pictures. They then serially examine 50 cards in three series. On each card is a picture they have seen and one they have not; they must make a "forced choice" and say which picture they had seen. This test is founded on two principles. The first is the nature of recognition memory: it is extremely easy for people to recognize whether they have or have not seen an item. Many people attain a score of 100 percent because it is a very simple task. Even people suffering from Alzheimer's, manic depressives, or those with brain damage will typically reach 90 percent accuracy. The second principle is statistical: the forced choice is the equivalent of flipping a coin, so a score of 50 percent would be random, demonstrating no memory capacity whatsoever. The total of 150 trials means that any deviation is statistically significant. Thus, any results significantly below 50 percent mean that the subject is intentionally choosing the wrong answer to feign negative results. Mr. Louvarz's scores were as follows: Trial 1 — 80 percent incorrect; Trial 2 — 56 percent correct (approaching random); Trial 3 — 82 percent incorrect. Dr. Young described the third trial as the "retention" test, the easiest, and the results were extraordinarily below chance. He testified that the only interpretation was the intentional production of bad results and that this was the greatest number of incorrect responses he had ever seen.

Dr. Young testified that Mr. Louvarz had similarly poor results in other tests. In the dot-counting test, Mr. Louvarz took 23 seconds to count 11 dots, and then said it was too hard for him, so the test was aborted. In the 15-item memory test, the items are actually grouped (A, B, C, 1, 2, 3, a, b, c, i, ii, iii, and three geometric shapes), so there are far fewer actual categories to remember. Most subjects remember all the items, the brain injured remember 10, and Mr. Louvarz remembered none.

Dr. Young testified that Mr. Louvarz had complaints in any domain he was asked about such as his memory, concentration, planning, language use, and spatial and somatory functions. He claimed that his handwriting was worse, that he could not understand or concentrate when he read something nor do mental mathematics calculations well. He did not know what he ate the night before or the night before that, and he could not relate any local or global news story. His sense of smell had deteriorated, as had his sense of direction, although he had returned to driving. At face value, these symptoms indicated massive cerebral dysfunction involving most brain systems reflecting a complete global impairment that was inconsistent with any minor closed head injury he could possibly have sustained in the accident. As for post-traumatic stress disorder, it can cause cognitive deficits that are modest and usually relate to mild memory and concentration problems and a few other executive functions such as planning behaviour.

Mr. Louvarz's symptoms portrayed as severely dysfunctional areas of the brain that would never be involved in the disorder and were inconsistent with the medical facts.

Dr. Young testified that if Mr. Louvarz had a head injury that explained his test results, he would not be in a position to drive a car, as he would be very severely disabled and most likely institutionalized. He also administered the Trauma Symptom Inventory (TSI), testing the symptoms diagnosed by Dr. Boozary. The results were extremely elevated beyond anything Dr. Young had ever seen, including such severely traumatic situations he has worked with where people had seen their relatives decapitated.

I find Dr. Young's evidence seriously affects Mr. Louvarz's credibility. The concept of the TOMM test is easy to understand, the test itself is easy, and Mr. Louvarz's terrible results lead to the natural conclusion that he was intentionally producing those negative results, which is the definition of malingering.

Findings and Conclusions:

Housekeeping and Attendant Care

Of what remained of Mr. Louvarz's claims under these heads by the end of the hearing, $600 was for "attendant care out of home," which appears to be a claim related to travel expenses for attending examinations. Mr. Louvarz's evidence was exceedingly vague on this point. In any event, such travel expenses are excluded under section 16(3) and must be claimed under section 24. However, I heard no evidence that Mr. Naybzade-Gogani was needed as an attendant; at most he may have provided a transportation service. Even without considering Mr. Louvarz's credibility problems, I find that this portion of the claim is far from proven. It is denied.

As for the housekeeping expenses, Mr. Louvarz is claiming $200 per week, but the maximum allowed under section 22(2) is only $100 per week. Furthermore, the benefit is only payable if he sustained an impairment that resulted in a "substantial inability" to perform the housekeeping and home maintenance services that he normally performed before the accident. I accept the evidence in the Activities of Daily Living log sheet showing that he could continue to perform most household activities unassisted, needing assistance only with cleaning the bathrooms, and Dr. Boozary's notation of April 9, 1997, that Mr. Louvarz did not suffer an impairment preventing him "from performing pre-accident housekeeping and/or home maintenance activities." Mr. Naybzade-Gogani was not called as a witness, and Mr. Louvarz provided no bank records to substantiate the payments notwithstanding the requests by Dominion. The only evidence in support of this claim is Mr. Louvarz's uncorroborated and vague testimony. In light of the fact that Mr. Louvarz reduced his claim by almost half during the hearing when confronted with Mr. Naybzade-Gogani's statement, and in light of his other credibility problems, that I will discuss more fully in the section regarding the weekly IRBs, I find that Mr. Louvarz's credibility on this issue is so tainted that I cannot accept his testimony without corroboration. This claim is also denied.

Weekly Income Replacement Benefits

Mr. Louvarz seeks IRBs from the termination date to some time in February 1999. IRBs are available under section 4 of the Schedule:

4. The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:

5. The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

The "substantial inability to perform the essential tasks" of the employment test has been discussed in a number of decisions, such as in the recent appeal case McAngus and Guardian Insurance Company of Canada³:

This test involves a two-step analysis. The first step is to determine the insured person's essential tasks. The second is to determine whether he is substantially unable to perform them. As a practical matter, the heavier the essential tasks of the insured person's employment, the easier it will be for him to prove that he is substantially unable to perform those tasks, all else being equal.

The only evidence about Mr. Louvarz's essential tasks came from Mr. Louvarz, either in his testimony or in the FCEs. As a result, his credibility is important in the determining of his essential tasks. I accept the following principle stated in Cook and State Farm Mutual Automobile Insurance Company⁴: "While corroborative evidence may be helpful to an Applicant's case, its absence does not automatically equate with an inability to prove certain facts." However, in that case, the Applicant was credible on the whole, which I find is not the case here. Mr. Louvarz did not report his post-accident work activities and income to Dominion, despite several requests. Mr. Louvarz only admitted working at Swiss Chalet when he was confronted with the surveillance tapes. Similarly, he only reduced his housekeeping claim in half when confronted with the statement of Mr. Naybzade-Gogani, having maintained the higher claim throughout the proceedings until he was under cross-examination. As for the surveillance, Mr. Louvarz was seen working 3.3 hours at Swiss Chalet on February 8, 1998, yet the next day he complained to Dr. Boozary that he could not work at his computer or at school nor had any desire to do anything. Mr. Louvarz has also never told his wife about working at Swiss Chalet. When Mrs. Louvarz testified that in the fall of 1998 he told her he was working with Reza, Mr. Louvarz's explanation was that he lied to his wife. He even lied to her about how valuable the dog he obtained for her was, and he acted in a way to make her think he was a student when they first met. I find that these elements do affect Mr. Louvarz's credibility on the whole. I find that they show his tendency to tailor his evidence and to exaggerate.

I have set out Mr. Louvarz's evidence about his pre-accident work activities above, as well as the information Ms. Rupert obtained. Ms. Rupert testified that if Mr. Louvarz had mentioned heavy lifting in his job, she would have put that into her assessment. The CARG FCE was put to her, and she was surprised regarding the references to prolonged sitting and the reference to lifting demands of 20 to 80 pounds. However, the CARG report is silent on how often and how long Mr. Louvarz had to perform the activities it lists as part of his job requirements. Furthermore, Mr. Louvarz testified that at most he would lift 60 pounds, as heavier carpets required assistance.

The report also indicates that Mr. Louvarz worked four to seven hours a day, but Mr. Louvarz testified that he also sometimes left work early and that the store was often quiet in the afternoons, so he would be simply sitting behind the cash.

The evidence presented leads me to find that at most Mr. Louvarz's essential tasks consisted of selling carpets and occasionally lifting them with assistance as required.

As regards the assessment of substantial inability arising from physical disability addressed in the two functional capacity evaluations, I find little to prefer one over the other. As stated in McAngus: "Any expert report must be assessed with respect to a number of factors, including familiarity with the insured person, expertise, completeness, accuracy and impartiality." In both cases, the assessors were equally familiar or unfamiliar with Mr. Louvarz, and the assessments took approximately the same amount of time. I was presented with no evidence that Atila Balaban, the exercise physiologist who conducted the CARG FCE, had more expertise than the occupational therapist and registered physiotherapist who conducted the AW FCE. Both FCEs relied on the Isernhagen Work System for evaluation, although there were the additional National Institute for Occupational Safety and Health (NIOSH) protocols applied in the CARG FCE. However, Mr. Louvarz presented complaints during the CARG FCE procedures that are inconsistent with other medical evidence and his own testimony. He reported intermittent, burning pain in his low back, yet he testified that within a few months of the accident he only had problems in his knees. He described his knee pain as continuous and sharp, yet in July 1997 he reported to Dr. Oshidari only intermittent knee pain on activity. The CARG FCE concluded that Mr. Louvarz showed good effort, but in their chart on consistency of effort it is noted that he did not show heart rates consistent with a maximal effort. On balance, I find that the CARG FCE has no greater completeness, accuracy or impartiality than the AW FCE.

Aside from the FCEs, Mr. Louvarz's own doctors, Dr. Graham and Dr. Oshidari, recommended no further treatment, believing that the knees would heal naturally. By December 2, 1997, Dr. Boozary considered the main disability condition to be psychological. I do not find that there is sufficient evidence to support Mr. Louvarz's claim that his knee problems prevented him from working, at least to the time of the debridement. Clearly, Mr. Louvarz would not have been able to work for a period after the surgery. Dominion submits that there is a lack of causation between the surgery and the accident. However, the notes of Dr. Boozary shortly after the accident do show knee complaints. Dr. Graham diagnosed a re-activated Osgood-Schlatter's disease. Considering the absence of reference to any such pre-existing condition in Dr. Boozary's clinical notes and records, I find the natural inference is that the condition was re-activated as a result of the accident. There is very little evidence as to how long Mr. Louvarz was affected by the surgery. Mr. Louvarz testified that the operation quickly relieved his pain. Dr. Boozary reported to Mr. Louvarz's lawyers on September 10, 1998, that Mr. Louvarz reported some improvement in his knee pain, although not full recovery. Mrs. Louvarz, who I found to be very credible, testified that around the time she and Mr. Louvarz became engaged in October 1998, he told her that he was working with Reza; Mr. Louvarz testified that he told this lie to explain the money that he was receiving from social assistance. Either Mr. Louvarz was working, or he had recovered sufficiently to convince his wife he was working; in either event I am satisfied that he had recovered from the effects of the surgery by the beginning of October 1998. I find that on the basis of physical disabilities he is entitled to IRBs from July 31, 1998 for a period of eight weeks.

As for Mr. Louvarz's psychological or psychiatric problems, I have set out above my findings regarding Dr. Young's assessment of him. His findings are consistent with what I have found regarding Mr. Louvarz's credibility. If Mr. Louvarz did in fact suffer from post-traumatic stress disorder, I find that it occurred as a result of the incident with the snake in the shower. Accordingly, I award no further benefits on the basis of any psychological or psychiatric disability.

Other Claims:

I was provided with no evidence that any of the medical benefits claimed under section 14 of the Schedule were still outstanding. The claims are dismissed. As for the claims for costs of examinations, Mr. Louvarz's representative submitted that although these examinations could be seen as expenses, if Mr. Louvarz was unsuccessful he might not recover them as such, so he asked that they be paid. I find that this is insufficient to make an award under section 14 and that the dominant purpose of the medical/legal report by Dr. Boozary to Mr. Louvarz's lawyers dated December 2, 1997 and of the CARG FCE was for the purpose of litigation. These items are only claimable as expenses, subject to any ruling on expenses. That dominant purpose is not so clear with respect to Dr. Boozary's Disability Certificate of October 14, 1997, and I allow this $75 claim.

Dominion shall pay Mr. Louvarz interest on overdue payments in accordance with section 46 of the Schedule.

EXPENSES:

The issue of expenses was deferred. If the parties cannot agree upon entitlement to expenses, an expenses assessment may be arranged in the usual manner.

February 25, 2000

David J. Evans

Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 41

FSCO A98-000446

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

HOSSEIN LOUVARZ

Applicant

and

DOMINION OF CANADA GENERAL 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. Mr. Louvarz is entitled to receive weekly income replacement benefits from July 31, 1998 for a period of eight weeks pursuant to section 4 of the Schedule.

2. Mr. Louvarz is entitled to receive $75 for the cost of examinations under section 24 of the Schedule.

3. Dominion shall pay Mr. Louvarz interest on overdue payments in accordance with section 46 of the Schedule.

February 25, 2000

David J. Evans

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
2. 2Reza Fahkre, phonetic spelling, according to the statement taken from Mr. Naybzade-Gogani, Ex.9.
3. 3(P98-00049, January 10, 2000)
4. 4(OIC A96-001284, March 20, 1998)