Neutral Citation: 2000 ONFSCDRS 75

FSCO A97-002012

BETWEEN:

NABIL BOUCHAKRA

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

June 14, 15, 16, 1999 and January 18, 19, 2000, in Ottawa, Ontario.

Appearances:

Michael Pantalony and Thomas Ozere for Mr. Bouchakra

Katherine A. Cotton for Zurich Insurance Company

The Applicant, Nabil Bouchakra, was injured in motor vehicle accidents on December 8, 1994 and February 6, 1996. He applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich terminated weekly income replacement benefits on November 27, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Bouchakra 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. Bouchakra entitled to income replacement benefits from November 27, 1996 and ongoing with interest?
Is either party liable to pay the other's expenses in respect of the hearing?

Mr. Bouchakra is entitled to income replacement benefits from November 27, 1996 and ongoing with interest calculated in accordance with the Schedule.
Mr. Bouchakra is entitled to his assessed or agreed upon expenses in respect of the hearing minus one quarter of his counsel's fee.

Mr. Bouchakra was involved in a motor vehicle accident on December 8, 1994 when the van he was driving along a downtown Ottawa street was cut off and forced from the road. He was wearing his seat belt but felt an immediate burning pain in the back of his neck and experienced dizziness.² Despite seeking medical attention from many health care practitioners, Mr. Bouchakra claims that he has not recovered from his accident-related injuries. In addition to ongoing neck pain, Mr. Bouchakra complains of pain in the right shoulder and low back and headaches. He maintains that these symptoms have prevented him from returning to work.

A second, less serious, motor vehicle accident took place on February 8, 1996. Zurich was also required to respond to the claim resulting from this accident. Mr. Bouchakra sustained a cervical strain and aggravated the injuries he sustained in the first accident. There was a third motor vehicle accident in September 1996 but neither party considered it to be the cause of ongoing disability.

Zurich paid income replacement benefits until November 27, 1996, just short of two years from the date of the accident. However, it alleges that Mr. Bouchakra's complaints of pain have, throughout, been inconsistent and self-imposed. In the alternative, Zurich argues that Mr. Bouchakra's ongoing disability, if any, is not the result of the accident but of one or more of the following causes: congenital instability in his neck, degenerative changes in his spine and/or excessive use of drugs prescribed by his family doctor.

Prior to the accident, Mr. Bouchakra was a successful construction contractor, renovating restaurants and homes in the Ottawa area. Zurich questions the physical demands imposed by this kind of work and contends that Mr. Bouchakra had more help doing it than he admitted. Zurich also challenged Mr. Bouchakra's claim of ongoing disability through video surveillance evidence showing him repairing residential properties he owns and rents out in Hull.

The first Job Analysis signed by Mr. Bouchakra on May 17, 1995³ stated that he was required to lift 50 pounds, maximum, with frequent lifting and carrying of objects weighing up to 20 pounds. On this basis, the physical demands of his pre-accident work were classified as "medium." In a Job Analysis Addendum signed by Mr. Bouchakra on July 27, 1995,⁴ this classification was revised to "heavy" based on his statement that he was sometimes required to lift items weighing 75 to 100 pounds, including shingles (75 pounds) and his bandsaw and heavy duty planer (100 pounds) as this equipment was required, two to four times a month, at the project site. In a statement provided to a DAC examiner in October 1996, Mr. Bouchakra again stated that he sometimes lifted packs of shingles and that "he may have to move his table saw to an onsite location."⁵

Zurich challenges the inclusion of shingle lifting as an essential task of Mr. Bouchakra's pre-accident employment on the ground that Mr. Bouchakra admitted on cross-examination that his last roofing job was three years before the accident.⁶ It challenges the inclusion of planer lifting on the ground that Mr. Bouchakra admitted in his examination-in-chief⁷ that he never took the planer to a project site. However, I find that even if these tasks are excluded,⁸ Mr. Bouchakra's pre-accident employment remains in the heavy category due to the uncontradicted evidence that he was sometimes required to lift cement bags weighing more than 100 pounds.⁹

Zurich also questions Mr. Bouchakra's evidence that he worked 90 percent on his own, only hiring additional workers to perform painting and clean-up duties¹⁰ and only using labour supplied by Jorge Ambar, the owner of one of the restaurants renovated, about 5 percent of the time.¹¹ Zurich cited Mr. Ambar's testimony to the effect that he helped Mr. Bouchakra with a variety of manual tasks, including carrying in materials, moving the bar and sanding tables.¹² It further cited Mr. Bouchakra's own testimony that a man already working at the site on another project helped him on one job,¹³ that the father of the owner helped him on another job¹⁴ and that his cousin helped on still another job done for that cousin.¹⁵ However, while the evidence cited by Zurich may cast doubt on the percentage of time Mr. Bouchakra was helped by owners, it corroborates his testimony that he only accepted basic assistance from them in return for reduced costs.¹⁶ Moreover, the evidence of Mr. Ambar and Mr. Dove, a worker employed by Mr. Bouchakra, confirms Mr. Bouchakra's testimony that he used paid workers mostly to do painting and clean-up jobs.¹⁷

I, therefore, find that Mr. Bouchakra performed all the remaining tasks essential to his construction business and I accept his evidence that this business undertook the following kinds of installations at commercial and residential sites: drywall, cement walls and foundations, metal and wooden studs, vinyl siding, tiles (floor and walls), drop ceilings, decks, patios, fences, interior woodworking (bars at restaurants) and furniture construction (restaurant tables and chairs). I also accept Mr. Bouchakra's own and other evidence confirming that this work required him to lift, bend, kneel, crouch, climb, use his arms, hands and legs and work overhead, usually while manipulating construction tools or materials weighing up to 100 pounds.¹⁸

There is no evidence that Mr. Bouchakra had symptomatic neck, shoulder or back problems prior to the accident. Nor is there any dispute that Mr. Bouchakra sustained soft tissue injuries, at least to his neck and shoulder, in the accident. The issues are whether he recovered from these injuries prior to the termination date or, if he remained disabled thereafter, whether his accident injuries contributed in a material way to his ongoing disability. I propose to examine the evidence with respect to these issues under headings suggested by Zurich's non-accident explanations for Mr. Bouchakra's post-termination disability: congenital instability in his neck, degenerative changes in his spine, excessive use of drugs prescribed by his family doctor, and finally what I will call his selective self-limitation.

Congenital instability in the neck:

Mr. Bouchakra testified that the immediate neck pain caused by the accident got worse thereafter.¹⁹ He did not attend at any hospital on the day of the accident but rather went to see his family physician, Dr. F. Irani, who sent him for X-rays of the cervical spine, taken January 11, 1995. The radiologist reported a possible transverse defect across the base of the odontoid region and stated "if there is an acute injury involved, immediate CT evaluation [scan] at a hospital centre would be needed."²⁰ An axial CT scan of the upper cervical spine was performed on January 16, 1995 and, in a first report dated January 17, 1995,²¹ the radiologist wrote:

There is a wide defect from the base of the odontoid to the rather irregular superior aspect of the odontoid. The configuration is consistent with an os odontoideum anomaly. This is a developmental anomaly of the odontoid...

Opinion:

Os odontoideum with considerable movement at the C1-2 junction. As far as I can tell, the bony abnormalities are all of long standing.

A second radiologist's report dated January 30, 1995, written following a further review of the same CT scan results, contains the following:

Opinion:

A Defect is present at the base of the odontoid process. This could be due to an old fracture.²²

While it should have been clear from these radiology reports that the odontoid condition was not caused by the recent motor vehicle accident,²³ its discovery had important health implications for Mr. Bouchakra. This was not because his odontoid condition generated painful symptoms but because it created the risk of serious or fatal injury.

This was confirmed by Dr. H. Hugenholtz, the neurosurgeon to whom Mr. Bouchakra was referred for surgical treatment of the odontoid condition. Dr. Hugenholtz's reports dated February 3, 1995²⁴ and May 10, 1995²⁵ stated that this condition was not the result of the motor vehicle accident but was probably congenital and longstanding. The odontoid condition, Dr. Hugenholtz's reports explained, created an instability or mobility at the C1-C2 level and, with it, the risk "that with minor trauma to the head or spinal column [Mr. Bouchakra] could end up with a serious life threatening injury to this upper spinal cord." Dr. Hugenholtz also elucidated the relationship between that condition and the injuries sustained in the motor vehicle accident when he wrote:

The mobility at this level is such that one would seriously consider intervention with interarticular screws and fusion to reduce the possibility of a more serious injury in the future. Nevertheless, I do not believe that fusing the C1-C2 level will necessarily alleviate his present symptoms which appear to be more muscular resulting from an original soft tissue injury of his neck.

I believe that his persistent pain may well be due to a diminished pain threshold from excessive muscular tension as compensation for the C1-C2 instability. However, I am not so naive as to believe that fusing the C1-C2 level will necessarily alleviate his discomfort.

In a report dated March 26, 1996,²⁶ Dr. Hugenholtz revised his opinion that the odontoid condition was congenital, stating "we concluded that he did have a fracture across the base of the odontoid." However, he added: "it was not at all clear that this fracture was related to the motor vehicle accident."

Dr. M. Baxter, an orthopaedic surgeon to whom Zurich referred Mr. Bouchakra for assessment on January 25, 1996,²⁷ was uncertain whether Mr. Bouchakra's odontoid condition was congenital or "the result of a non-union of a fracture of the base of the odontoid." However, Dr. Baxter did not state that a fracture, if there was one, was caused by the first motor vehicle accident (the second accident not having yet happened) and she did not think that a cervical fusion "would have any effect on his current pain related complaints." In her report dated May 23, 1996, Dr. Baxter stated the opinion that the odontoid condition was congenital and asymptomatic prior to the accident.

Dr. Z. Dhalla, a specialist in neurology and electromyography, expressed a similar opinion in his report dated April 17, 1996²⁸ in which he wrote:

I suspect that the pain that he is experiencing in his neck and in his right shoulder region is likely largely musculoskeletal in origin. I suspect that he has myofascial pain in the neck and as well may have tendonitis on the anterior aspect of the right shoulder...

I explained to the patient that the pain in his right shoulder region is probably not related to the instability at the atlanto-axial joint and if any surgery was undertaken in this region, it would not be expected to improve his right shoulder pain.

Likewise, in his report dated April 19, 1996,²⁹ Dr. Brien Benoit, another neurosurgeon, attributed Mr. Bouchakra's cervical strain to his two motor vehicle accidents, not to his odontoid condition. Dr. Benoit did not attribute Mr. Bouchakra's shoulder discomfort to either of the motor vehicles accidents or to the odontoid condition. He was of the opinion that the odontoid condition was probably congenital and stated that a cervical spine fusion would not cure all the symptoms of which he complains."

In my view, this body of medical opinion supports the findings that Mr. Bouchakra's odontoid condition was not caused by the motor vehicle accidents and that Mr. Bouchakra's neck and right shoulder pain were not caused by his odontoid condition. However, assuming at this stage of the analysis that the neck and right shoulder pain was caused by the injuries sustained in the motor vehicle accidents, questions remain as to whether his pre-existing odontoid condition nevertheless complicated his recovery from these injuries and his return to work or whether he recovered from his accident injuries and the odontoid condition became the sole barrier to his return to work.

In his report dated October 3, 1995,³⁰ Dr. Francois Racine, a physiatrist, stated: "I am unable to recommend this patient to be returned to work on construction in view of radiological evidence of C1-2 instability..." Dr. Racine also suggested reassessment by Dr. Hugenholtz.

Without referring to either Dr. Hugenholtz's or Dr. Racine's opinion about the return to work risks created by the odontoid condition,³¹ Dr. Baxter wrote the following at one point in her report of February 1, 1996:

From a work perspective, the patient is not at anymore risk of catastrophic trauma to the cervical spine than he is in daily activities. If he really has significant instability, that catastrophic risk will always be present. (My emphasis)

However, at other points in the same report, Dr. Baxter stated that cineradiological investigation at the C1-C2 level was critical to assess "whether significant instability is present" and wrote:

Mr. Bouchakra can participate in a work hardening program if dynamic review [cineradiological investigation] of C1-C2 shows no gross instability.

If there is no gross instability, there is no contraindication to him returning to any physical activity. The risk of catastrophic spinal injury is present in activities of daily living just as much as in his employment as a general contractor. (My emphasis)

There is no evidence that Mr. Bouchakra was ever the subject of cineradiological investigation. He was, however, the subject of video surveillance in late June 1996, discussed further below. After viewing this video, Dr. Baxter wrote a report dated August 13, 1996³² which states:

The controlled manoeuvres that he performed while working on the tape do not place him at risk. I feel his neck would be more at risk for acute spinal cord injury from a subsequent motor vehicle accident with another whiplash then from his actual employment.

In his report of April 19, 1996, Dr. Benoit also stated that Mr. Bouchakra could participate in a work hardening program but his opinion is then qualified by the following comments:

Mr. Bouchakra does not suffer from any symptom [as opposed to a condition which caused no symptoms but created risks] which would significantly impair his capability as a general contractor, carrying out light physical work. (My emphasis)

Dr. Benoit's report of October 7, 1996³³ contains the opinion that Mr. Bouchakra did not require surgery to his cervical spine, suggesting, without stating, that a correction of his odontoid condition was not necessary for a return to work.

The reports of Dr. Baxter and Dr. Benoit do not, as I read them, constitute clear medical opinion that the odontoid condition created no return to work risks for Mr. Bouchakra. Their opinions either admit, by implication, the existence of such risks, turn on the results of further radiological investigation or limit the situations in which such risks would not exist to work hardening, light work or video surveillance scenarios.

Mr. Bouchakra, on the other hand, gave the following testimony about his first consultations with Dr. Hugenholtz:

Q. What did Dr. Hugenholtz tell you about what could happen to your neck?

A. Oh, he told me, if you fall down, you can -- your hand -- your neck slip right away, or if you're working, you fall down, or if something falls on your head, or you fight with somebody. And that's a serious problem, Mr. Bouchakra, he told me, big problem.

Q. So how did that make you feel when you were told that?

A. Well, first of all, I feel very lucky I don't get killed at the same time [I understand the words "at the same time" to mean at the time of the accident], you know, because he described for me the neck, the bone, just like soap. Just like soap, he said, can slip right away. So I was very lucky, first of all, you know, to stay alive.

And I was really -- like it shocked me, because I had never had any problems. And now I start to think seriously about life, especially, when you are married, you have a small kid too, you know.³⁴

Dr. Hugenholtz's report of March 26, 1996³⁵ confirms not only that he continued to warn Mr. Bouchakra about the risks associated with the odontoid condition but that, in addition, he informed Mr. Bouchakra that corrective surgery also carried risks. His report contains this paragraph:

Again I emphasized the potential risk that this instability imposes and the need to seriously consider stabilizing the C1-C2 level. I did again emphasize the fact that such surgery would not address the residual discomfort in his right arm or the stiffness and reduced movement of his neck. It would be purely designed to protect him from a cord myelopathy from a minor injury. I indicated to him that the operative morbidity of such surgery was somewhere in the magnitude of 5 or perhaps even 10% though that maybe overstating it somewhat.

In July 1996, Mr. Bouchakra was seen at the Multi-Disciplinary Chronic Pain Clinic at the Rehabilitation Centre³⁶ and reported suffering from "neck and shoulder pain which is constant." A team of assessors with expertise in physiotherapy, physical medicine, nursing and psychology concluded that Mr. Bouchakra had "chronic pain which was primarily muscular in nature. His pain has also affected his sleep and many aspects of his life such that he can be said to have chronic pain syndrome." However, since corrective surgery for his odontoid condition was still being considered, Mr. Bouchakra was not considered "an appropriate candidate for any of our chronic pain rehabilitation programs."

Mr. Bouchakra did pursue physiotherapy treatment but responded very poorly. In its report dated November 18, 1996,³⁷ Action Physiotherapy describes as follows the results of Mr. Bouchakra's 26 visits to that facility between August 26, 1996 and November 7, 1996:

Mr. Bouchakra did not make any functional gain from treatment, ie, he showed no progression in his conditioning program. Despite much encouragement and education, Mr. Bouchakra continued to perceive that exercises would injure him further and he remained highly pain focused. Mr. Bouchakra has shown himself to be self limiting and poorly motivated throughout the course of his treatment.

There are no objective signs which would account for his complete inability to make any increase in his activity during his exercise program.

In late September 1996, Mr. Bouchakra was evaluated at the Designated Assessment Centre (the "DAC") known as Capital Vocational Specialists Ltd. The DAC chiropractic report, written by Eric Jackson,³⁸ echoes the findings noted by Action Physiotherapy. The impression portion of this report reads, in part, as follows:

From the examination performed today, it would appear that Mr. Bouchakra is not demonstrating his best attempts in movement about the cervical spine or at the right shoulder. He also appears inconsistent in terms of grip strength and subjective reporting of changes in sensation in the upper right extremity with pinwheel and vibratory sense.

Mr. Bouchakra was extremely hesitant to perform any of the testing in terms of axial compression or isometric resisted strength of the neck because of the pain and dizziness he reported.

The DAC psychological report, written by Dr. Denton Buchanan³⁹ describes a "man living in fear":

He is very worried about this neck surgery. He views it as a very high risk operation, something that could kill him. Yet, even without the operation, he believes that unusual movement of the neck could essentially break his neck.

To deal with the specific questions, Mr. Bouchakra does have a considerable psychological state that prevents him from working. He is, in essence, living in fear of his doing something that would cause serious damage to his neck....

From a psychological point of view, Mr. Bouchakra needs some rather clear, straight forward, simple education. His anxiety and fears stem out of a lack of understanding. He has a tendency to catastrophize and he has built up in his mind (and therefore it is a fact) that he is at risk for a life threatening injury. He needs understanding and supportive education from someone that he can trust as to his actual status. Unfortunately, I believe Dr. Hugenholtz has alarmed Mr. Bouchakra and, as I read this file, it appears to have been an unnecessary alarm.

The DAC medical report was written by Dr. Lynne MacGregor,⁴⁰ a specialist in physical medicine and rehabilitation. After reviewing the history and conducting an examination, Dr. MacGregor formed a clinical impression which included the following findings:

He does have some chronic pain features, with presentation at this time mainly of right sided myofascial neck pain with referred right arm symptoms and slight decreased range of motion of his right shoulder at about 3/4 normal range actively and passively.

This gentleman appears to be ambivalent regarding the stabilisation surgery that he has been informed about, especially with 2 different neurosurgical opinions and no guarantee regarding reducing or eliminating his pain in his neck and right arm as well as the increased surgical risk that was presented to him. He is quite fearful to participate in the work hardening program [still in progress at Action Physiotherapy] and appears to be doing poorly in it, partly because of the above mentioned reasons.

Dr. MacGregor provided the DAC team's answers to two questions. The first was whether Mr. Bouchakra suffered from a substantial inability to carry on his occupation as a self-employed contractor and Dr. MacGregor responded as follows:

It is our impression as a DAC team that he should be able to return to his work as a self employed contractor without causing any further damage. As Dr. Buchanan mentioned, this needs to be explained in detail to him and perhaps this could be done by his family physician as he needs a lot of reassurance that most of his symptomatology at this time is from a soft tissue disorder in his neck and it is unlikely that he will suffer any neurological impairment.

The second question was whether Mr. Bouchakra's disability resulted from of the accident of December 4 [8], 1994 and Dr. MacGregor gave this response:

It is likely that his soft tissue injury or myofascial neck pain is likely partially secondary to this motor vehicle accident of December 4 [8], 1994 but it is confounded by the subsequent accidents that he had in February and September 1996 respectively. Certainly the odontoid or cervical spine abnormality or irregularity seems to be more likely (from all the documents reviewed and the specialists that were involved) secondary to a congenital variation that was pre-existing and is probably not related to his motor vehicle accident of December 4[8], 1994.

I interpret this to mean that the DAC found a causal relationship between the soft tissue injuries Mr. Bouchakra sustained in the motor vehicle accidents and his ongoing neck and right shoulder pain. This is a finding which remains to be confirmed in light of other evidence. However, it is clear that the DAC also made other findings: Dr. Buchanan found Mr. Bouchakra to be suffering from "a considerable psychological state that prevents him from working" and Dr. MacGregor found Mr. Bouchakra to be suffering from at least "some chronic pain features." But rather than consider a possible link between these two findings, Dr. MacGregor dismissed Mr. Bouchakra's odontoid condition as being unrelated to the accident and Dr. Buchanan minimized Mr. Bouchakra's psychological problems as being treatable through supportive education from someone that he can trust as to his actual status."

As a qualified neurosurgeon, Dr. Hugenholtz was someone Mr. Bouchakra was entitled to trust when attempting to come to grips with the discovery of his odontoid condition and, in my view, it was entirely improper for Dr. Buchanan, a psychologist, to have suggested otherwise or questioned Dr. Hugenholtz's opinion. Furthermore, the fact that the odontoid condition was not caused by the accident did not, in my view, relieve Dr. MacGregor of the obligation to at least refer to Dr. Hugenholtz's opinion about the return to work risks created by that condition before making statements like Mr. Bouchakra should be able to return to work as a self employed contractor without causing any further damage."

It was not until March 1997 when Mr. Bouchakra was referred to Dr. Martin Gillen, a specialist in Physical Medicine and Rehabilitation, that the relationship between his accident injuries and his odontoid condition received a more penetrating analysis.

In his report of June 29, 1998,⁴¹ Dr. Gillen agreed with the chronic pain diagnosis and since, by that time, Mr. Bouchakra had decided against surgical treatment of his odontoid condition, Dr. Gillen referred him back to the Rehabilitation Centre for treatment in the pain rehabilitation program. However, in his report dated February 25, 1999,⁴² Dr. Gillen stated:

The relative lack of response, in spite of being well motivated during the six week pain management program with a fitness/conditioning component and the length of time that has passed since the accident, are poor prognostic indicators for further improvement. Therefore, prognostically there is no realistic expectation that this gentleman will improve to a level in the future consistent with being able to return to that type of activity [his occupation as a general contractor].

But while attributing Mr. Bouchakra's inability to return to work to his chronic pain syndrome, Dr. Gillen's report of March 2, 1999 did not attribute that syndrome entirely to his motor vehicle accidents or entirely to his odontoid condition but to a combination of the two. He wrote:

...my diagnosis in this case would be a cervical and shoulder girdle region myofascial pain disorder, chronic in nature with associated development of chronic pain syndrome features. Also associated with this, was the discovery of a C1-2 instability. This combination of processes seems to have resulted in a chronic pain syndrome with anxiety overlay features and possibly depressive features as well. As noted however, this gentleman is not very psychologically minded. As a result, he tends to deal with things in a very concrete way.

Unfortunately he has pain in an area where he does have an abnormality. He did not have pain in that area prior to the December 1994 accident. Quite frankly, the fact that the abnormality causally probably did exist prior to the accident is effectively meaningless to this gentleman. Structurally he did not have a problem there before the accident and after the accident he did. I think given what this gentleman has gone through there is virtually no realistic possibility of changing his point of view in that regard.

Causally I would agree that this gentleman's problem, at least from the information available to me, is most probably an os odontoideum which pre-dates the accident of December 1994 as do the degenerative changes seen. However, the dynamics of this gentleman's disability in my view arise from his soft tissue pain, his fear associated with the bony defect, and development of a chronic pain syndrome from the December 1994 accident. (My emphasis)

As discussed below, there is a competing explanation of the source of Mr. Bouchakra's pain, unrelated to the motor vehicle accidents. However, based on Dr. Gillen's opinion, I find that Mr. Bouchakra's ongoing disability is not attributable entirely to the discovery of his odontoid condition or to the fears that discovery generated. If it were, then the first motor vehicle accident would have only been significant, apart from the short-term effects of soft tissue injuries, because it led to the discovery of the odontoid condition. But the diagnosis in this case, agreed to by multiple medical examiners, was chronic pain syndrome, reflecting Mr. Bouchakra's complaints of pain. The evidence is clear that Mr. Bouchakra's odontoid condition did not create pain prior to the accident and that surgical correction of that condition after the accident would not have relieved his complaints of pain. The odontoid condition did, however, instill in Mr. Bouchakra a profound fear of further injury. As I understand Dr. Gillen's opinion, it was a combination of pain and fear which led to the evolution of the chronic pain syndrome. I accept and rely upon this opinion and upon Dr. Gillen's opinion as to the disabling effects of Mr. Bouchakra's chronic pain syndrome.

Degenerative changes in the spine:

In her report dated February 1, 1996, Dr. Baxter expressed the following opinions about the source of Mr.Bouchakra's pain:

His persistent right neck and upper thoracic and shoulder girdle pain is more a function of the degenerative changes of the lower cervical spine region and his mild right thoracic scoliosis.

Recovery from simple cervical strain physiologically takes within six to twelve weeks. The recovery is prolonged if the patient has preexisting degenerative changes in the cervical spine. This appears to be the case with Mr. Bouchakra. In addition, his right thoracic scoliosis is presenting some problems.

Without examining Mr. Bouchakra again, Dr. Baxter wrote a clarification letter dated May 23, 1996 which contains the following additional comments:

Mr. Bouchakra is currently ready to release to any type of alternate occupation not requiring heavy labour. If he cannot complete the work hardening program, then he could also consider alternate occupations. Mr. Bouchakra may be specifically prevented from achieving his pre-accident fitness because of complaints of pain as a result of extensive degenerative changes in the lower cervical spine and his thoracic spine.

His complaints of chronic pain come from the degenerative changes in the lower cervical spine.

Dr. Baxter's reports may establish the existence of pre-accident degenerative changes in the spine, but they also indicate that these degenerative changes were prolonging Mr. Bouchakra's recovery from the injuries he sustained in the first motor vehicle accident. Further, these reports state that Mr. Bouchakra might not recover to pre-accident fitness due to degenerative changes in the spine without indicating whether or not the accident injuries affected or accelerated these degenerative changes. Dr. Baxter also appears to have been one of the first doctors to refer to Mr. Bouchakra's "complaints of chronic pain."

In view of their contents and the fact that they were based on an examination in January 1996, ten months prior to the termination date in November 1996, these reports do not, in my view, provided a reliable explanation of the source of Mr. Bouchakra's ongoing pain. I find the opinions of Dr. MacGregor and Dr. Gillen, as previously noted, more reliable and I, therefore, find a causal relationship between the soft tissue injuries Mr. Bouchakra sustained in the motor vehicle accidents and his complaints of ongoing neck and right shoulder pain.

This finding, together with my earlier acceptance of Dr. Gillen's opinions about the evolution of the chronic pain syndrome and its disabling effects, leads me to conclude that the injuries sustained in the motor vehicle accidents contributed in a material way to Mr. Bouchakra's ongoing and substantial inability to perform the essential tasks of his pre-accident employment.

Excessive use of drugs prescribed by the family doctor:

Dr. MacGregor's report dated November 21, 1996⁴³ listed Mr. Bouchakra's current medication and contained this comment: "I am concerned about his increased dependency on narcotic analgesics for this length of time following his MVA with a chronic pain problem."

Perhaps triggered by this comment, counsel for the Insurer vigorously cross-examined Mr. Bouchakra's family physician, Dr. Irani, with respect to the drugs he prescribed for Mr. Bouchakra, suggesting that they were excessive, contraindicated or likely to lead to dependency. However, in my view, Dr. Irani adequately defended his choice of medication for Mr. Bouchakra and I find no merit in this argument.

Selective self-limitation:

The medical evidence previously reviewed clearly establishes that Mr. Bouchakra has consciously limited the degree to which he will exert himself on examination. I am prepared to accept that a substantial degree of self-limitation is consistent with a diagnosis of chronic pain syndrome in which fear of injury has played a significant part. Selective self-limitation is an entirely different matter. Does the surveillance evidence establish that while Mr. Bouchakra's has displayed self-limiting behaviour on examination, he is capable of lifting these limits when he thinks he is not being observed for insurance purposes?

Zurich entered into evidence video surveillance showing Mr. Bouchakra repairing residential properties he owns and rents out in Hull.⁴⁴ As indicated, this surveillance material was shown to Dr. Baxter whose report of August 13, 1996⁴⁵ contained these comments:

The second tape recorded on June 28th and 29th of 1996 does show Mr. Bouchakra hard at work. The June 28th sequence shows him performing the duties of heavy labour without wearing a collar with no sign of any concern for potential instability of his neck. He can be observed to perform a range of motion in all directions. Based on this surveillance material, I reinforced my previous impression that I feel Mr. Bouchakra is fit for his previous employment. I now qualify that only by stating that he certainly does not appear deconditioned based on what was observed on the June 28th and 29th tape.

This surveillance material was also reviewed by kinesiologist Marc Gignac during the course of the DAC evaluation. In a report dated September 27, 1996,⁴⁶ prior to the Functional Capacity Evaluation, Mr. Gignac described Mr. Bouchakra's activities as recorded on the surveillance tape as follows:

...Mr. Bouchakra was observed to be able to use his tools in what appeared an appropriate fashion. He was seen hammering, cutting wood using an electrical saw, taking measurements and verifying that the surface was level. In fact, Mr. Bouchakra demonstrated very good control of his tools in that he was observed to be able to use the electrical circular saw to cut indentations in a wooden board while standing. The process involved maintaining the saw at his chest height and making small vertical and horizontal incisions into the board in order to remove the pieces of wood.

I observe that Mr. Gignac used the word "heavy" only to describe a pail he observed Mr. Bouchakra carrying a few times, not to describe Mr. Bouchakra's activities in general. Further, he also noted that Mr. Bouchakra did use a neck collar that day. Most significantly, Mr. Gignac observed a reduction in the level of Mr. Bouchakra's activity after about two hours. Under the heading "pain behaviour," Mr. Gignac wrote:

Mr. Bouchakra was observed to perform all of the above noted activities for 2 hours without apparent difficulties, observable pain behaviours and/or medical aides (neck brace). However, he was observed to apply a neck collar on the same day. Mr. Bouchakra's first appearance with the neck brace came at 1:05 pm on June 28, 1996 when entering the truck but it should be noted that he was later observed not wearing it. (1:52 pm). When Mr. Bouchakra returned to the work site with his neck collar he no longer participated in the work but rather remained seated outside of the main level only to occasionally get up and talk to the workers.[My emphasis]

Mr. Gignac's conclusion from the surveillance material was that "Mr. Bouchakra is performing pre MVA related tasks." After completing the Functional Capacity Evaluation on October 8, 1996, Mr. Gignac wrote the following concluding sentence to his report dated October 10, 1996:⁴⁷ "...there is a significant discrepancy between Mr. Bouchakra's physical abilities recorded on video tape and those that he demonstrated during this functional capacity."

Mr. Bouchakra testified that he undertook the activities shown in the surveillance evidence after being encouraged by his physiotherapist, insurance adjuster and family doctor to try to use his right arm.⁴⁸ He did so with the assistance of medication for pain (demerol)⁴⁹ and his neck brace which he put on and took off as the pain and fatigue required.⁵⁰Dr. Gillen testified that the June 28, 1996 surveillance material only demonstrated that Mr. Bouchakra had the capacity to engage in the activities shown for the periods of time he was shown engaging in them.⁵¹ Dr. Gillen testified that it was "risky" to extrapolate those results to activities Mr. Bouchakra would be able to undertake all day, day after day.⁵² He testified that, in fact, Mr. Bouchakra seemed to be "hurting by the end of the day" as shown by his use of the neck collar, his stiffer, more measured movements⁵³ and incidents where he appeared to become clumsy.⁵⁴ Dr. Gillen might have also noted, as had Mr. Gignac, that Mr. Bouchakra appeared to let others workers take over the work in the latter part of the day.

In my view, the surveillance evidence does not establish that Mr. Bouchakra was capable of returning to his pre-accident employment. While the tasks he is seen performing in the surveillance video may overlap with some of the essential tasks of his pre-accident employment, they cannot be equated with all or most such tasks. Nor, in my view, was he observed doing them in a competitive context, day after day, but rather at his own properties on one day with the assistance of pain medication and a neck brace. Moreover, I accept Dr. Gillen's evidence that Mr. Bouchakra was hurting by the end of that day.

I reject the Insurer's attempt to use the surveillance evidence to portray Mr. Bouchakra as a malingerer. I accept Dr. Irani's view of Mr. Bouchakra, stated as follows:

Q. Did you have any reason, at this time or at any time up until now, to doubt the veracity of what he was subjectively presenting to you?

A. No, no, because logically I was thinking this is a guy who earned good money working hard, never saw a doctor, and all of sudden this starts to happen. How come?

You know, he's doing financially well up to that accident and I really didn't see any devious means why he would try to do this for so long, you know. And seeing his situation, the effects that had on the family, I had no doubt in my mind that he was truly suffering.⁵⁵

EXPENSES:

This case was scheduled to be heard over three days but I was informed at the start of the hearing that further days might have to be scheduled to complete it. I immediately indicated my concern about the length of the hearing by stating:

ARBITRATOR LEITCH: Okay. Well, can I just indicate to you -- and listen to me because I'm serious -- this thing was set for three days and I want to get it done in three days, frankly. Now, I've heard that there may be a problem, and I live in the real world too, it may be that we can't do it in three days.

If the problem here is that we need to cross-examine doctors whose reports are available, be careful, because if we are unnecessarily calling and cross-examining doctors and that prolongs this Hearing beyond the three days, there may be expense consequences.⁵⁶

Despite this warning, Applicant's counsel decided to call and cross-examine Dr. Baxter, Dr. MacGregor and Mr. Gignac. This decision necessitated a fourth day of hearing⁵⁷ which took place six months after the first three days of hearing. In my view, these cross-examinations established nothing significant beyond the facts and opinions stated in the witnesses' reports or provable through other admitted evidence.

Having heard the parties' submissions with respect to expenses at the hearing, I find that the Applicant is entitled to his assessed or agreed upon expenses minus one quarter of his counsel's fee for the hearing.

April 20, 2000

David Leitch Arbitrator

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