Bako Johnson v. Allstate Insurance Company of Canada, 2000 ONFSCDRS 79

Neutral Citation: 2000 ONFSCDRS 79

FSCO A98-001087

BETWEEN:

BAKO JOHNSON Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Fred Sampliner

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

Appearances: Thomas Wolf Zwiebel for Mr. Johnson Todd J. McCarthy for Allstate Insurance Company of Canada

Issues:

The Applicant, Bako Johnson, was injured in a motor vehicle accident on July 15, 1997. He received benefits from Allstate Insurance Company of Canada ("Allstate") until November 10, 1997, payable under the Schedule.¹ Mr. Johnson's claims for further benefits were rejected by Allstate. The parties were unable to resolve their disputes through mediation, and Mr. Johnson 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. Johnson is entitled to income replacement benefits after November 10, 1997 under Part II of the Schedule?
Is Mr. Johnson entitled to the claimed rehabilitation expenses under Part V of the Schedule?
Is Mr. Johnson entitled to the claimed housekeeping expenses under Part VI of the Schedule?
Is Mr. Johnson entitled to the claimed transportation expenses under Part V of the Schedule?

Result:

Mr. Johnson is not entitled to income replacement benefits after November 10, 1997.
Mr. Johnson is not entitled to the claimed rehabilitation expenses.
Mr. Johnson is not entitled to the claimed housekeeping expenses.
Mr. Johnson is not entitled to the claimed transportation expenses.

EVIDENCE AND ANALYSIS:

On July 15, 1997, Mr. Bako Johnson's car was directly broadsided by another vehicle as he pulled away from a stop sign. He sought medical treatment for his low back pain, neck and left leg pain, headaches and sleeplessness from his family physician, Dr. Ajay Varma. The doctor reported that Mr. Johnson has no significant medical history, referred him to physiotherapy and prescribed anti-inflammatory medication. His opinion was that Mr. Johnson could not yet return to work.

There is no dispute that Mr. Johnson's neck and left leg pain largely resolved. His claims herein primarily relate to low back pain and headaches.

Allstate accepted Dr. Varma's initial opinion. This qualified Mr. Johnson for an income replacement benefit under Part II of the Schedule, which requires that a claimant demonstrate that the accident injuries cause him to suffer a substantial inability to perform the essential tasks of his pre-accident employment. Mr. Johnson was employed under contract as a quality control inspector for ATS Reliance Group (ATS).

There is no written job description or analysis of Mr. Johnson's duties at ATS. Mr. Johnson testified that he lifted hoods, doors and trunk lids from the assembly line, rolled them on a cart to a room where he measured tolerances. Mr. Johnson recorded data on a computer, and took quality problems to line supervisors. Mr. Johnson stated that his back pain after the accident reduced his lifting capacity and that headaches resulting from his injuries interfered with his concentration.

Mr. Johnson resumed temporary work after the accident. He does not claim benefits for the two full-time days he worked on temporary assignment as a general labourer in January 1998, and the four weeks he did factory work in November and December 1998.² On February 23, 1999, Mr. Johnson commenced full-time factory labour, which ends his claim period.

Medical Evidence:

Testing conducted after the accident did not show any physical abnormality. The experts agree that Mr. Johnson suffered a soft tissue whiplash injury to his back. Six weeks after the accident, ProMed Rehabilitation Centre (Promed) reported that Mr. Johnson was progressing well in physiotherapy, and was making a gradual recovery. His leg pain had disappeared, and lumbar flexion was 70 percent of normal. By October 1997, ProMed reported that Mr. Johnson's back pain had improved 65 percent, and his neck pain and movement were also much improved. Thus, in September 1997, Allstate sent Mr. Johnson to a medical assessment with Dr. Jeffrey Lloyd, orthopaedic surgeon. Examining Mr. Johnson, Dr. Lloyd could not find any physical reasons for his limitations. He observed that Mr. Johnson's movements were much freer when he was not being examined, and opined he could resume work.

The September 1997 surveillance videotape shows Mr. Johnson walking, exiting and entering his car very easily. Despite Mr. Johnson's protest that he was in pain, it appears that his neck and back were not painful or restricted.

Professional Centre for Rehabilitation (PCR) provided physiotherapy services after Promed ceased treatment. From October to December 1997, Mr. Johnson's condition improved significantly. PCR's exercise chart indicates that Mr. Johnson was able to repetitively use 20 to 60 lb weights to lift, push, pull and perform biceps curls by the second week of November 1997. PCR discharged Mr. Johnson in early December 1997, recommending home exercises and swimming to address his remaining low back pain and mobility problems.

In mid-November 1997, Mr. Johnson's work disability was examined by Dr. Karl Massiah, an orthopaedic surgeon at a designated assessment facility. He found Mr. Johnson did not have back or neck muscle spasms, swelling or tenderness, which he could consider as objective signs of soft tissue injury.

Dr. Massiah found signs of exaggerated pain. He noted that Mr. Johnson turned his head slightly side-to-side on examination, but nodded normally to answer questions. His arms moved slowly and were restricted during formal tests. However, Mr. Johnson quickly and freely pointed out his neck pain, and could put his arms overhead to remove and put on his sweater before and after the examination. Dr. Massiah also saw that Mr. Johnson could raise his leg for a knee jerk test while sitting (90 degrees), but could not lift them from a prone position during the leg raise test (10 degrees). Dr. Massiah agreed with Dr. Lloyd that Mr. Johnson exaggerated his disability and was not impaired from his normal daily tasks or job-related activities. Mr. Johnson went through a third course of treatment at Wilson Rehabilitation and Physiotherapy from December 1997 until mid-February 1998. Wilson does not provide a disability analysis, estimating that Mr. Johnson would be able to resume work after completing the program. During Wilson's treatment a physiatrist recommended active therapy. Dr. Alireza Kachooie diagnosed moderate/severe sacroiliac pain in late January 1998. He does not provide a disability opinion or analysis either.

Mr. Johnson's personal physician, Dr. Ajay Varma, indicated that Mr. Johnson continued to complain of back pain. His clinical notes reveal that Mr. Johnson had appointments from one to three times a month through October 1998. Back complaints are noted, but Dr. Varma does not provide a disability opinion or analysis of his condition.

Mr. Johnson testified that his treatment at Promed and PCR did not relieve his pain, and that he complained to his family physician during visits once or twice a week. Aside from attending treatment, he exercised at home and took medication. Mr. Johnson's evidence is that back pain continued to disable him from working because his job required him to regularly lift the auto parts, and headaches prevented him from concentrating.

Disability Analysis:

Neither Dr. Kachooie, Dr. Varma or any other expert provides an opinion supporting Mr. Johnson's work disability. His steady progress through physiotherapy is credibly documented through Promed and PCR's records. I do not accept Dr. Kachooie's diagnosis that Mr. Johnson continued to suffer a moderate/severe whiplash injury in January 1998 because the PCR discharge indicates he had substantially improved and only needed to exercise regularly.

The lack of expert opinion to support Mr. Johnson's claim and his treatment progress outweigh his testimony that the treatment did not help, and that he suffered a substantial inability to perform his essential work functions. Moreover, Mr. Johnson did not explain why he could not lift and carry auto parts in mid-November when the PCR records indicate he was using his arms and low back to repetitively move 20 to 60 lb weights.

I rely on Drs. Lloyd's and Massiah's assessments and the PCR records. In all probability, Mr. Johnson continued to suffer from some residual pain from his injuries, but the evidence does not satisfy me that he suffered a substantial inability to perform his essential job duties after November 10, 1997. I find that Mr. Johnson is not entitled to income replacement benefits after the November 10, 1997 termination date.

Rehabilitation Benefits:

Allstate argues that a second and third treatment program were not necessary or reasonable under Part V of the Schedule, based on Mr. Johnson's testimony that the treatment did not help, and the opinions of Drs. Lloyd and Massiah. The opinion of both physicians concern his disability, not Mr. Johnson's treatment. Therefore, I do not rely on their opinions in respect of Mr. Johnson's treatment. Allstate did not tender any other health care opinion or other evidence contradicting the recommendations from Mr. Johnson's health care professionals.

Mr. Johnson's first treatment facility, Promed, reported in mid-September that although full recovery could be expected with continued treatment, his lumbar flexion was still restricted to 60 to 70 percent of normal. Promed did not provide a discharge report when they released him in early October 1997. It is apparent from the letters that PCR's discharge was based on cessation of Allstate's funding, rather than his full recovery.

When Mr. Johnson resumed treatment at PCR shortly after Promed's plan ended, the intake examination revealed Mr. Johnson had 40 percent low back extension/flexion. This evidence satisfies me that Mr. Johnson's low back continued to be symptomatic after his release from Promed, and it was reasonable and necessary for him to seek further treatment.

PCR forwarded an initial report and treatment plan to Allstate, requesting funding for six weeks of physiotherapy and acupuncture treatment. The treatment notes showing that Mr. Johnson made gradual progress at PCR through his seven weeks attendance from October to December 1997 and PCR's discharge summary indicating he significantly improved establishes that the program was reasonable.

Relying on this evidence, I find that Mr. Johnson's treatment at PCR through December 1997 was reasonable and necessary, and that he is entitled to $2,030³ as a rehabilitation expense.

After Mr. Johnson was discharged from PCR, he immediately sought continued treatment. Wilson Physiotherapy and Rehabilitation (Wilson) recommended that Allstate fund another 20 exercise sessions. Mr. Johnson attended at Wilson from late December 1997 to mid-February 1998. Evidence supporting Mr. Johnson's claim derives from his back complaints in Dr. Varma's notes after his PCR discharge, and a recommendation from a specialist.

In December 1997, Mr. Johnson's family doctor referred him to Dr. Kachooie, a physiatrist, for tests and examination. Dr. Kachooie's late January 1998 examination and recommendation for six to eight weeks of structured physical rehabilitation occurred near Mr. Johnson's completion of the Wilson therapy program.

Wilson's records do not provide evidence of Mr. Johnson's progress or his condition on discharge. Though Dr. Kachooie's report indicates he knew Mr. Johnson had undergone two previous physiotherapy programs, he provides no reasoning for the necessity of continuing with similar treatment where PCR had discharged him to exercise on his own. Moreover, his late January 1998 characterization of Mr. Johnson's injury as moderate/severe does not agree with his reported condition on discharge from PCR or the fact that he was working two days at a physically-demanding job.

I do not accept Dr. Kachooie's opinion. I find that Wilson's treatment was not reasonable or necessary, and Mr. Johnson is not entitled to reimbursement for this expense.

Housekeeping Expenses:

Under section 22 of the Schedule, an insured person may recover incurred housekeeping expenses up to $100 a week if the accident injuries cause a substantial inability to perform his or her household chores.

In this case, Mr. Johnson's claim for $2,160 in housekeeping expenses is not supported by a recommendation from any health care expert or a finding that he suffered the requisite impairment. Mr. Johnson relies on cash receipts, his testimony and the health care evidence that he had a soft tissue injury.

The 14 receipts each purport to represent $160 cash paid by Mr. Johnson for housekeeping services between the accident and year-end. The illegible signature on the receipts has no other information to identify the payee. Mr. Johnson testified that he hired and paid his friend, Benson, who did not testify. Mr. Johnson stated that Benson cleaned, cooked and did his laundry at his bachelor apartment. In the absence of any expert recommendation for housekeeping, I am not satisfied with Mr. Johnson's evidence of his need for these services.

Nor does the documentary evidence meet his burden to prove he incurred the cost of these services. The receipts lack identification of the provider, and without the payee's corroborating testimony, I am not prepared to accept that payments were made. Moreover, given that Mr. Johnson lived in a small apartment, it is difficult for me to believe that he could not perform most of the modest household chores. I find that Mr. Johnson is not entitled to any housekeeping expenses.

Transportation Expenses:

Transportation expenses to and from treatment may be claimed under Part V of the Schedule, as provided in the Transportation Expense Guidelines.⁴ Under the Guideline and the Schedule, an insured person can recover for travel to appointments using his or her own car when the trip is more than 50 km. Use of a taxi is authorized when the insured person does not own or have access to an automobile or there are other circumstances that make a taxi practical.

Mr. Johnson’s claim for $920 taxi expenses to treatment sessions does not comply with the Guideline and the Schedule. Mr. Johnson owned an automobile at the time of the accident, and the surveillance evidence in mid-September shows him driving it. He presented no expert opinion or any other evidence that the car was not available or he could not operate it.

The Schedule and the Guideline contemplate that the insured person use their own vehicle for transportation to treatment. Mr. Johnson’s case presents no extraordinary circumstances for using a taxi. I find that Mr. Johnson is not entitled to the claimed taxi expenses.

EXPENSES:

The parties may ask for an assessment if they cannot resolve expenses.

April 27, 2000

Fred Sampliner Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 79

FSCO A98-001087

FINANCIAL SERVICES COMMISSION OF ONTARIO