Neutral Citation: 2001 ONFSCDRS 154

FSCO A99-000522

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DAVID PINHASOV

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

REASONS FOR DECISION

Before:

Asfaw Seife

Heard:

June 26, 27, 28, August 30, 2000, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Jadranka Cavrak for Mr. Pinhasov

Doug Wallace for Guarantee Company of North America

Issues:

The Applicant, David Pinhasov, was injured in a motor vehicle accident on January 4, 1996. He applied for and received statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.¹ Guarantee paid Mr. Pinhasov weekly income replacement benefits (IRBs) at the rate of $339.05, from one week after the accident through to December 17, 1997, when they were terminated. The parties were unable to resolve their disputes through mediation, and Mr. Pinhasov applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, (the Act). The issues in this hearing are:

1. Is Mr. Pinhasov entitled to IRBs from December 17, 1997 and ongoing, pursuant to section 7 of the Schedule?

2. Is Mr. Pinhasov entitled to a special award pursuant to section 282(10) of the Act?

Result:

1. Mr. Pinhasov is entitled to IRBs from December 17, 1997 and ongoing, pursuant to section 7 of the Schedule, plus interest in accordance with section 68 of the Schedule, until the provisions of Part VI of the Schedule with respect to the payment of loss of earning capacity benefits have been complied with.

2. Mr. Pinhasov is not entitled to a special award.

3. The issue of expenses is deferred. I may be spoken to if the parties are unable to settle the issue of entitlement to arbitration expenses.

EVIDENCE AND ANALYSIS:

At the time on the accident of January 4, 1996, Mr. Pinhasov was 39 years of age, married with two teen-aged boys. He was born in Azerbaijan, where he lived until 1975 when he moved to Israel. Mr. Pinhasov was trained as a physical education instructor. In Israel, he taught physical education until 1982 when he developed a heart condition known as atrial fibrillation.² Mr. Pinhasov changed his occupation and became a travel agent, a more sedentary employment that better suited his health. The Pinhasovs immigrated to Canada in 1993 and Mr. Pinhasov immediately found employment as a travel agent at Peerless Travel Agency in Toronto, where he was still working at the time of the accident. Mr. Pinhasov has a fair knowledge of English; however, he preferred to testify with the assistance of a Russian interpreter.

The accident in question occurred at around 4:30 p.m. on January 4, 1996. Mr. Pinhasov had just picked up his wife, Ms. Sonia Pinhasov, from work and was in the process of driving out of the parking area when his car collided with another car traveling on the main road. Mr. Pinhasov's car was struck on the driver's side. Mr. Pinhasov was wearing his seat belt and Ms. Pinhasov was seated in the front passenger seat. Both Mr. and Ms. Pinhasov were injured in the accident. The damage to their vehicle was estimated at $6,000.

Mr. Pinhasov testified that the only thing he recalls after the impact was the left side of his face hitting the interior of the car very hard and ambulance attendants trying to get him out of the car. Mr. Pinhasov testified that he thought he had lost consciousness between the time of impact and the arrival of the ambulance. Ms. Pinhasov testified that after the impact, Mr. Pinhasov was unresponsive and appeared to be dead. The ambulance report indicates that Mr. Pinhasov was conscious when the ambulance arrived. He was hyperventilating and complaining of numbness and tingling in his hands.

The ambulance took Mr. Pinhasov to North York Branson Hospital where his main complaints were numbness in his legs and difficulty breathing. Mr. Pinhasov testified that he felt as if his "whole body was electrified." He did not feel pain in any specific part of his body at the time. He was released from hospital several hours later, after x-rays of his head and spine were taken. The x-rays showed no significant abnormality.

The next day, Mr. Pinhasov saw Dr. Sara Pliamm, his family physician since 1993, with complaints of severe headaches, dizziness, nausea, pain in the neck and back. She prescribed Tylenol and advised him to relax at home.

On January 29, 1996, Dr. Pliamm completed a Health Practitioner's Certificate for Mr. Pinhasov's application for accident benefits. She identified head injury as the primary diagnosis, and soft-tissue strain of the neck and upper back and post-traumatic headaches as secondary diagnoses.

Mr. Pinhasov began taking chiropractic, physiotherapy and other forms of rehabilitative treatment starting one week after the accident. Despite the treatments, he continued to complain of severe headaches, neck and back pain, numbness in his legs, as well as dizziness and memory problems. Since the accident, in addition to seeing Dr. Pliamm regularly, Mr. Pinhasov has been treated and seen in consultation by a number of specialists, including neurologists, a rheumatologist, cardiologists, orthopaedic surgeons, physiatrists, an acupuncture specialist, and a psychologist.

Mr. Pinhasov has also been assessed at his request and through referral by Guarantee. He has undergone both a disability DAC (Designated Assessment Centre) and a medical/ rehabilitation DAC. He has undergone various investigative procedures including x-rays of the cervical, lumbar and thoracic spine, CT head scans, a bone scan, and an MRI of the cervical and thoracic spine.

Mr. Pinhasov testified that he has seen little improvement in his condition since the accident and has not returned to full-time employment. He testified that he attempted a gradual return to work in October 1997 and has been working at Peerless Travel on a part-time basis since then. At the time of the hearing, he was working 20 to 25 hours per week (four to five hours a day, five days a week). Mr. Pinhasov testified that he is unable to perform his essential tasks on a full-time basis because of the impairments he sustained in the accident.

Entitlement to Weekly Income Replacement Benefits:

In order to be entitled to further IRBs under section 7 of the Schedule, Mr. Pinhasov must prove, on a balance of probabilities, that because of an impairment he sustained as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident occupation or employment. The Schedule defines impairment as "a loss or abnormality of psychological, physiological or anatomical structure or function." It has been stated in numerous arbitration decisions that substantial inability means not some disability and not total disability, but a significant inability which prevents an applicant from carrying out his or her essential tasks to a significant extent.

Guarantee paid Mr. Pinhasov IRBs for almost two years on the basis that he suffered a substantial inability to perform the essential tasks of his pre-accident employment as a travel agent. It terminated his benefits on December 17, 1997, based on the report of a disability DAC which concluded that Mr. Pinhasov was not disabled from engaging in full-time employment because of an impairment arising from the accident. Guarantee took the position that any disability that Mr. Pinhasov may have since December 1997 is not attributable to the accident; rather, it is due to his deteriorating heart condition, which is unrelated to the accident.

I heard evidence from Mr. Pinhasov and his witnesses — his wife, Ms. Pinhasov; his employer, Mr. Telem; Dr. Alpert, orthopaedic specialist; Dr. Rathbone, neurologist; and Dr. Pliamm, his family physician. Guarantee called Dr. Paitich, orthopaedic surgeon.

In addition, both parties filed considerable documentary evidence, including the clinical records and reports of the health care practitioners who have treated or assessed Mr. Pinhasov since the accident.

For the following reasons, I find that Mr. Pinhasov has discharged the burden of proof that he continues to suffer a substantial inability to perform the essential tasks of his pre-accident employment as a result of impairments caused by the accident.

Essential Tasks:

There is no dispute regarding the essential tasks of Mr. Pinhasov's pre-accident employment as a travel agent.

Mr. Pinhasov worked as a commissioned travel agent, based on a 60 percent share of the commission received by the travel agency on the products he sold. The evidence indicates and I find that before the accident Mr. Pinhasov was a very hard-working travel agent who succeeded in building a large clientele within a few years of working at Peerless Travel. I find Mr. Pinhasov worked five, often six, days a week, eight to 12 hours a day — up to 60 hours per week.

Mr. Pinhasov's duties consisted of speaking to customers throughout the day; providing travel information regarding services offered by the travel agency, ensuring their needs are met and requesting feedback; booking trips utilizing data bases in the computer; calling travel suppliers; requesting information on travel packages; preparing paperwork for completing travel arrangements; participating in office duties, such as assisting in clerical duties, incoming mail; and performing office services such as photocopying, filing and faxing.

I find the physical demands of Mr. Pinhasov's employment to be light and sedentary in nature including prolonged sitting at a desk, working on a computer keyboard and speaking on the telephone. Mr. Pinhasov is required to walk, stand, stoop and twist occasionally when operating office equipment, filing and helping with the incoming mail. Most lifting and carrying requirements are under 10 pounds, rarely over 25 pounds and never in excess of 60.

Pre-accident Medical History:

Mr. Pinhasov's pre-accident medical history is not contentious. I find that the relevant part of his pre-accident medical history consists of long-standing atrial fibrillation, for over 15 years prior to the accident. This condition limited his ability to engage in strenuous physical activity or employment with heavy physical demands. Consequently, he was forced to change his occupation to a travel agent, a sedentary employment with light physical demands. He had no history of back or neck problems, or headaches prior to the accident.

Mr. Pinhasov testified that, while his heart condition had prevented him from engaging in his previous occupation as a physical education instructor, it did not prevent him from working as a travel agent. Dr. Pliamm testified that, except for brief periods when he experienced serious bouts of fibrillation, Mr. Pinhasov had been able to function as a travel consultant with little difficulty. His heart condition was largely controlled with medication and a modified life style. I heard no evidence to contradict this. Therefore, I find that before the accident Mr. Pinhasov was able to engage in the essential tasks of his employment as a travel agent, for 50 to 60 hours per week, despite his heart condition.

Post Accident:

Mr. Pinahaov testified that the numbness in his legs, nausea and dizziness are not problems that significantly interfere with his functionality. Mr. Pinhasov testified that the problems that prevent him from engaging in his essential tasks on a full-time basis are headaches, neck and back pain.

Mr. Pinhasov testified that his headaches have diminished in frequency and intensity since the accident; however, he still gets them two to three times a week. His headaches involve the left side of his head and are often associated with nausea. The only treatment he has taken is Tylenol tablets. (Due to his heart condition, Mr. Pinhasov is limited in the medications he can take.) Massage therapy has helped him. When the pain starts, the only thing that gives him some relief is lying down. When he gets headaches, he cannot concentrate on what he is doing and becomes impatient with people.

Mr. Pinhasov testified that his neck pain started two or three days after the accident and has continued without much improvement. He testified that at the beginning the problem was stiffness, which now comes and goes. Some days he still has difficulty moving his neck, but the problem is not as bad as before. He stated that the neck pain he gets is severe, consistent and intolerable. When he gets the pain, he feels "as if a needle was inserted into [his] neck." He still gets spasms in the neck which may happen suddenly. As a result of the pain, he is unable to perform his tasks at work properly. He finds that he is unable to maintain a static posture for a prolonged time due to fatigue and pain, especially when sitting at his desk working on the computer or talking on the phone, although the office phones are equipped with a speaker phone, he picks up the phone in order not to disturb others. He can work for a while, but most of the time he sits at his desk against his will. He testified his nature is very strong and he forces himself to work.

Mr. Pinhasov described experiencing pain in both the low back and upper/mid-back area that started several days after the accident. Initially, he used to experience pain in the low and mid back on a daily basis. He stated that the low back pain has improved dramatically; however, the pain in the mid back has increased. Currently, he is debilitated by severe mid-back pain, which he experiences, especially when seated. When the pain increases, he stops whatever he is doing, stands up and exercises. This relieves the pain, but this activity significantly interferes with his work. He testified that he often goes home to rest after a few hours in the office. He testified that doctors discussed with him the possibility of surgery to his back in the future.

Mr. Pinhasov testified that his memory problem emerged gradually after the accident and became noticeable after he returned to work. He stated that he has to write down everything, because he cannot rely on his memory. His memory has not improved and seriously affects his work. He always has the feeling that he has forgotten to do something very important.

Mr. Pinhasov has taken various rehabilitative treatments, including chiropractic, physiotherapy, massage, acupuncture, and trigger-point injections. He testified that the treatment he found most helpful was neck massage that decreased the stiffness in his neck. The other treatments gave him temporary relief, but have not resolved his problems.

Mr. Pinhasov testified about his heart problem after the accident. He admitted that it is a serious problem which causes him great concern. However, he denied that his heart palpitations have become more frequent or that they have caused him greater stress since the accident. He stated he gets palpitations quite frequently, sometimes several times a week. His attacks sometimes last a short time and he does not feel exhausted. He may stop what he is doing to relax when he has these attacks. He said such attacks do not put him in any significant distress. However, when he has long spells of fibrillation, he feels that he is going to die. But these do not happen often. His condition is controlled by medication. Mr. Pinhasov suffered a mild stroke on September 25, 1996, from which he has fully recovered.

Mr. Pinhasov testified that an operation to implant a pacemaker in his chest had been suggested to him several times previously, but he has not agreed to do it. He conceded, the thought of a pacemaker disturbs him.

Mr. Pinhasov testified that he attempted to return to work gradually starting October 1997. He stated he was still "physically feeling very badly in October 1997," but he had no choice since he had to start earning a living. In the beginning he worked two to three days a week, two to three hours a day. This has gradually increased to a maximum of five days a week, five hours a day.

Counsel for Guarantee questioned Mr. Pinhasov's testimony about the date of his return to work. Counsel showed to Mr. Pinhasov that Dr. Pliamm's reports of April 14, 1997 and February 11, 2000 indicate that Mr. Pinhasov first attempted to return to work in April 1997, and that he in fact started working part-time in July 1997. Mr. Pinhasov testified that he had wanted to return to work in April 1997 because he was "fed up", he wanted "to be back functioning normally" in spite of his health problems. However, he did not start working then because he had no desk to return to at the travel agency. Mr. Pinhasov stated that he had gone to the agency in July 1997 to visit but did not actually start working until October 1997.

Mr. Pinhasov testified that when he returned to work, he had to start from "scratch" because in his absence he had lost all his clientele. He gets clients mostly through his own effort. He did not get all of his clients back when he returned to work because he was unable to put in all the hours required. He testified that the travel industry is a very competitive business and it takes enormous effort to rebuild a clientele. When asked, "Are you able to increase your hours?", Mr. Pinhasov replied, "I am doing the most hours that I am capable of because I reach such a level of pain that it's unbearable. I get up and leave and go home. I have missed many days of work."

Although there are no attendance records kept by the agency to confirm this, Mr. Telem, the owner of the travel agency, corroborated Mr. Pinhasov's evidence about the date of his return to work and the number of hours he worked. His recollection was that Mr. Pinhasov had started coming to the agency a few months earlier, but that he had not started working until October 1997. Mr. Telem testified that at the time of the hearing Mr. Pinhasov was working five to six hours a day, five days a week, on the average.

Mr. Telem also testified that before the accident, Mr. Pinhasov was an excellent employee who generated more than $750,000 in gross sales in 1995. After the accident, when he went back to Peerless Travel, his health was very poor, he could not work as many hours and missed a lot of time. He was unable to reach sales of more than $200,000 — less than a third of his pre-accident level. This is due to a combination of losing most of his clients when he stopped working, and his inability to put in enough time into the business. Mr. Telem testified that Mr. Pinhasov changed drastically after the accident. He gained weight, he is slower in everything he does and constantly complains of pain and headaches Ms. Pinhasov testified that it was approximately two years after the accident that Mr. Pinhasov returned to work. She supported his testimony about his health condition after he returned to work. She said he would come home red eyed, complaining of severe headaches, shoulder, neck and back pain. He has become forgetful, quiet and depressed. He misses a lot of time from work, often returning home early, complaining of pain.

I accept Mr. Pinhasov's testimony as corroborated by Mr. Telem and Ms. Pinhasov. I find that although Mr. Pinhasov attempted to return to work in April 1997, he did not do so until October 1997. I find that Mr. Pinhasov returned to part-time work in October 1997 and has been able to gradually increase his hours to 25 hours per week. I find that at the time of the hearing, Mr. Pinhasov was able, despite his accident related problems, to perform his employment tasks for up to 25 hours a week.

Summary of the Medical Evidence:

Over the four-year period after the accident, Dr. Pliamm has seen Mr. Pinhasov with continued complaints of headaches, neck and back pain, dizziness, nausea, numbness in the legs and other complaints. She has arranged for him to see various specialists. In January 1996, she referred him to Dr. M. Levitan for a neurological examination. Dr. Levitan found that he had sustained a mild head injury and diagnosed concussion and post-traumatic headaches. A CT scan of Mr. Pinhasov's head conducted on January 29, 1996 to rule out brain damage showed no significant abnormality. On January 26 and 30, 1996, Mr. Pinhasov saw Dr. Pliamm with complaints of severe back pain in the thoracic area. Dr. Pliamm arranged a bone scan to rule out a fracture in the area. The scan, performed on February 6, 1996, showed no abnormality in this area.

On June 5, 1996, Mr. Pinhasov saw Dr. Pliamm with complaints of severe, unbearable pain in the right lower paracervical and upper thoracic areas, which he stated had been there previously, but had not been so severe. Massage, physiotherapy and acupuncture did not help him. Dr. Pliamm referred him to Dr. W.J. Potashner, a rheumatologist, who saw him on July 8, 1996. Dr. Potashner diagnosed referred muscular pain from his neck spasm and prescribed a muscle relaxant (Flexeril), which Mr. Pinhasov reported later did not help him. When Dr. Potashner re-evaluated him, he thought that Mr. Pinhasov was worse than before and administered trigger-point injections in the painful areas. Mr. Pinhasov testified he received only temporary relief from this procedure.

On September 25, 1996, Mr. Pinhasov was taken to the emergency department of North York Branson Hospital after complaining of a sudden onset of numbness in his left side of his face and tongue. He underwent a CT head scan the next day which revealed some possibility of an infarct in the right side of his brain. Dr. M. Strauss, his cardiologist since 1993, determined that Mr. Pinhasov had suffered a minor stroke as a result of his pre-existing heart condition. Dr. M. Levitan, his neurologist, who saw him a few days later, felt that the episode could have arisen from Mr. Pinhasov's accident-related injuries to the cervical area. Mr. Pinhasov was prescribed a blood thinner, Coumadin, to be taken on a life-long basis.

On November 29, 1996, Mr. Pinhasov was examined by Dr. F. Lipson, a physiatrist, at Guarantee's request. Dr. Lipson diagnosed soft-tissue injury to his cervical and lumbar spine as a result of the accident; however, he did not see any reason, from the physical standpoint, why Mr. Pinhasov could not return to his work as a travel agent.

On December 18, 1996, Mr. Pinhasov underwent a cervical spine MRI scan which showed pre-existing multilateral degenerative disc disease and a small posterior central disc herniation at C5-6. Dr. Levitan reviewed the MRI scan in February 1997 and expressed the opinion that there was no cord compression resulting from the herniation and the mild degenerative changes shown in the MRI scan and were of no clinical significance. This is an opinion in which other neurologists who examined Mr. Pinhasov subsequently concurred.

After results of the cervical MRI scan were known, Mr. Pinhasov was referred by Dr. Levitan to Dr. Kathy Vertesi, a chiropractor, who started treating him on February 11, 1997.

On May 9, 1997, Dr. Vertesi reported:

It is obvious that Mr. Pinhasov suffered moderate to severe soft tissue injuries in his accident. Many sources, however, say that soft tissue injuries should resolve within three months, but in Mr. Pinhasov's case, these soft tissue injuries have instead become worse. He admits that with his previous chiropractor, he withdrew consent for manipulation in the thoracolumbar spine since this area was so painful for him, and so his only therapy in this area was interferential current, which obviously was not enough. For this reason, his soft tissue injuries persisted.

In order to document objectively his soft tissue injuries, I ordered a surface EMG of the cervicothoracic and thoracolumbar spine. It clearly indicated that his soft tissue problems were indeed, as his symptoms dictated, in the left cervical spine, the right upper thoracic spine, and the thoracolumbar spine, bilaterally. In fact, when he flexed his neck forward, it showed an abnormal amount of activity in the left cervical musculature. Clinically, this could mean that when he is sitting at a desk, or reading and writing, simply bending his neck forward still causes undue muscular activity in his cervical and thoracolumbar spine. Subsequently, there would be compensatory muscle spasm in the upper right thoracic spine, and this may be becoming chronic and this would explain this area's lack of response to treatment thus far...

Dr. Vertesi felt that Mr. Pinhasov might not respond as quickly as expected in his exercise program and recommended that he should continue his chiropractic treatment for at least another four to six months.

In October 1997, while Mr. Pinhasov was still under the care of Dr. Vertesi, Guarantee sent him for a second disability assessment by Dr. Lipson, who found that there was no new information that would lead him to change his previous opinion that Mr. Pinhasov did not have a disabling physical condition. Like Dr. Levitan, he felt the disc compression at C5-6 was of no clinical significance; however, he noted that Mr. Pinhasov had some pre-existing degenerative disc disease in his cervical spine which was probably aggravated by the accident.

Because of her concerns of Mr. Pinhasov's continued complaints of severe upper back pain, Dr. Pliamm referred him to Dr.V. Kekosz, a physical medicine and rehabilitation specialist at Sunnybrook & Women's College Hospital. Dr. Kekosz examined Mr. Pinhasov on November 13, 1997 and formed the impression that there was "a small possibility that Mr. Pinhasov has sustained a small disc herniation in the T3 or T4 levels" which may be related to radiating pain from the C6 level. She attributed his symptoms to myofascial injury in the area. Dr. Kekosz ordered an MRI scan of Mr. Pinhasov's thoracic spine to rule out a discogenic problem. This procedure was conducted on January 18, 1998. The MRI scan revealed a moderate disc herniation at the T8-9 level. Dr. Kekosz discussed various strategies with Mr. Pinhasov, including mechanical traction, "to try to reduce the compressive forces to the mid thoracic region", suggesting that the herniated disc was compressing the spinal cord. This is not an opinion shared by the neurologists who have seen Mr. Pinhasov after the thoracic MRI, except possibly Dr. Rathbone, whose opinion is discussed below.

In December 1997, before the thoracic MRI was conducted, Guarantee had sent Mr. Pinhasov to Rehab Care, for a multi-disciplinary disability DAC assessment. By this time, Mr. Pinhasov had started working part-time at Peerless Travel. The DAC concluded that Mr. Pinahsov's cervical disc herniation was not symptomatic as there was no evidence of nerve root compression. It suggested further that "considering the high incidence of abnormal MRI scans in asymptomatic individuals, this finding is probably not due to the accident." It found the "constancy and intensity of his back complaints are out of keeping with the physical findings."

The DAC concluded that there was "no medical evidence of significant physical impairment that would limit Mr. Pinhasov's ability to manage full duties" as a travel agent. Guarantee terminated Mr. Pinhasov's IRBs following receipt of the DAC report. The DAC assessors did not have the opportunity to review their conclusions after the result of the thoracic MRI scan showing disc hernation was received by Guarantee in January 1998.

On February 24, 1998, after treating Mr. Pinhasov for one year, Dr. Vertesi reported that Mr. Pinhasov had reached maximum therapeutic benefit. She concluded that, while Mr. Pinhasov felt that he was much better than when he started with her, there has been little or no change in the upper thoracic pain.

Mr. Pinhasov testified in-chief that he was treated by Dr. Vertesi for two months and had seen no improvement in his neck and back pain, although he did receive temporary relief. Dr. Vertesi's records indicate that Mr. Pinhasov was treated by her over a period of seven months, and that he had reported improvement of his symptoms. Mr. Pinhasov testified, in cross-examination, that Dr. Vertesi's treatments helped him only while they lasted, that the treatments took place a long time ago and he does not remember all of the details. I do not find Dr. Vertesi's reports indicate that Mr. Pinhasov received lasting improvement in his condition. If Mr. Pinhasov's recollection is different from the reports, I find it is due to the passage of time and the number of treatment providers he was involved with over the years. I do not find the inconsistencies between his testimony and the records to be serious enough to impugn his credibility.

In March 1998, Mr. Pinhasov attended a multi-disciplinary medical/rehabilitation DAC assessment at York Active Rehab Centre. At that time, Mr. Pinhasov was still receiving chiropractic treatments and shiatsu massage. The DAC listed its clinical impression as: cervical myofascial strain, cervicogenic headaches, lumbar myofascial strain and "MRI evidence of moderate disc hernition at the T8-9 level, and local tenderness on mobilization of T9."

The DAC team concluded that Mr. Pinhasov had "few positive objective findings to indicate significant pathology which is ongoing." It recommended that he discontinue massage, chiropractic or other passive modalities. However, because it found that Mr. Pinhasov was "hypersensitive to palpation on the spinous process of T9," it agreed with Dr. Kekosz's recommendation of traction as a reasonable and necessary measure to relieve his pain. Mr. Pinhasov subsequently received a course of mechanical traction treatment at Promotion Physiotherapy, without much improvement of his symptoms.

Mr. Pinhasov was assessed by Dr. R. Midha, a neurosurgeon at Sunnybrook and Women's College Hospital in April 1999. In his report dated April 5, 1999, Dr. Midha noted the cervical and thoracic MRI findings of disc herniation, and opined that there was "no significant compression of the spinal cord,"and "no signal change in the spinal cord on either the cervical or thoracic spine imaging."

Dr. Midha concluded:

[Mr. Pinhasov] has mostly myofacial back pain. Some of his left thoracic chest wall pain may be related to disc herniation, but I do not feel that he is a candidate for thoracic discectomy as this will not address his main complaint which is interscapular pain. I also do not think that it will effect [sic] his other complaint of intermittent numbness phenomena in the legs.

In the summer of 1998, Mr. Pinhasov was seen by Dr. S. Mor for psychological counseling. Mr. Pinhasov did not feel he benefitted from psychological counseling and stopped attending after a few sessions. Mr. Pinhasov does not claim psychological impairment as a result of the accident.

In her report dated August 13, 1998, Dr. Mor reported that Mr. Pinhasov was under a great deal of stress at the time — in addition to his accident-related problems of headaches, neck and back pain, he was suffering from daily fibrillation attacks which physically and psychologically exhausted him. He was taking Coumadin, a powerful blood thinner, which placed him at high risk of hemorrhaging. He had suffered a stroke and he was warned that, in his condition, a stroke could occur at any time. The thought of whether or not he should accept a proposed heart surgery to install a pacemaker was tormenting him; and he was worried about the family's mounting financial problems.

Between December 1999 and May 2000, Mr. Pinhasov was assessed by two orthopaedic specialists, Dr. B. Alpert and Dr. C. B. Paitich; a psychiatrist, Dr. Thornton; and a neurologist, Dr. M. Rathbone. He also underwent a Functional Abilities Assessment at DEAHY Medical Assessments Inc. which concluded that he was able to perform his essential tasks as a travel agent only on a part-time basis and recommended a worksite ergonomic assessment. It is not clear whether this assessment took place.

Mr. Pinhasov related to all the physicians the same complaints that he had been making over the years. Dr. Alpert testified that Mr. Pinhasov demonstrated a number of objective abnormalities, including tenderness in the left thoracic spine from T9 to T10, in the lumbar spine, and decreased range of movement of the neck. Dr. Alpert diagnosed Mr. Pinhasov with chronic soft tissue and vertebral joint pain, disc herniation at C5-6 and T8-9, as well as post-concussion and cervicogenic headaches, all as a result of the accident. Dr. Alpert was of the opinion that Mr. Pinhasov's injuries were serious and permanent, and prevented him from engaging in his tasks as a travel agent.

Dr. Alpert testified disc herniation does not necessarily result in symptoms; however, he felt, in Mr. Pinhasov's case, that the thoracic MRI finding was that the "disc herniation was pressing on thecal sac and spinal cord." He said it is rare to have this finding and the person not complaining of thoracic pain. Dr. Alpert conceded that the absence of a narrowing of the foramen is a significant finding which means that there is no nerve root impingement.

Dr. C.B. Paitich examined Mr. Pinhasov at Guarantee's request, five months after he was assessed by Dr. Alpert and concluded that Mr. Pinhasov had no physical limitations arising from his accident-related injuries. Dr. Paitich testified that on physical examination Mr. Pinhasov described symptoms from the shoulder to the T-12 level, and symptoms of numbness on the whole posterior aspect of back that were not consistent with the MRI findings. Dr. Paitich testified that Mr. Pinhasov claimed he felt numbness, but he did not pass the pin-prick and light-touch tests. It appears that Dr. Paitich questioned the veracity of Mr. Pinhasov's claims, although he did not say as much in his testimony or report.

Although he did not refer to it in his report, Dr. Paitich testified that, in his view, the MRI scan of Mr. Pinhasov's cervical spine shows multi-level degenerative changes and central disc herniations, with no evidence of nerve compression.

Dr. Paitich concluded that the thoracic disc herniation was not causing Mr. Pinhasov's complaint of back pain, and that his injuries are restricted to the soft tissues of the neck and back. Dr. Paitich testified that the tendency of a disc herniation injury is complete resolution within six months, for 90 percent of the cases. He stated the other 10 percent will go on to develop chronic pain; however, he conceded that he had no way of knowing under which category Mr. Pinhasov fell and why.

In addition, Dr. Paitich stated that Mr. Pinhasov's complaint of back pain at the thoracic level began more than one month after the accident and therefore his back pain is not causally related to his motor vehicle accident. However, he conceded that, if Mr. Pinhasov reported the problem within days after the accident, he would find that the accident was the cause of the impairment. Dr. Paitich is the only physician who suggests that the thoracic herniation was not caused by the accident.

I do not accept Dr. Paitich's opinion that Mr. Pinhasov's thoracic disc injury was not caused by the accident. Mr. Pinhasov testified and Dr. Pliamm's reports indicate that Mr. Pinhasov complained about pain in his thoracic area as early as January 9, 1996, four days after the accident. There is no evidence to suggest that he had this condition prior to the accident.

Dr. Paitich also doubted if Mr. Pinhasov's thoracic disc herniation was caused by the accident because "disc herniation at T8-9 is not an unusual finding since the condition is present in 30 percent of the population without producing any symptoms." I do not accept Dr. Paitich's conclusion because he was unable to explain why Mr. Pinhasov would fall in that category. In addition, his position is inconsistent with the medical consensus that an asymptomatic herniation could become symptomatic after a traumatic event as a car accident. He did not explain why this could not have been the case in Mr. Pinhasov's situation.

Dr. M. Rathbone examined Mr. Pinhasov on May 19, 2000, a few days before he was seen by Dr. Paitich. Mr. Pinhasov related the same complaints to Dr. Rathbone that he did to Dr. Paitich.

Dr. Rathbone supported Mr. Pinhasov's claim of pain and disability.

Dr. Rathbone diagnosed Mr. Pinhasov as having sustained, as a result of the accident, a head injury with concussion, mild traumatic brain injury and post concussion syndrome, and myofascial injury to the cervical, thoracic and lumbar paraspinal muscles. Dr. Rathbone testified that Mr. Pinhasov's post-traumatic headaches "appear to be principally vascular with a cervicogenic component, and his thoracic pain is discogenic, due to the disc herniation at T8-9." He stated his mid back pain is made worse by myofascial pain in the paraspinal muscles of the back.

Dr. Rathbone was of the opinon that the disc herniation at C5-6 was probably not a significant cause of neck pain; however, he testified that the thoracic herniation was "a larger herniation that is sufficient to touch the nerve root and cause pain." Dr. Rathbone testified that the MRI shows the disc is lightly pressing on the spinal cord — but has not damaged it. He explained: either the disc can improve with time, or, having caused the tear, the herniation can get bigger causing increased pressure. The third possibility is gradual deterioration causing chronic pain. Dr. Rathbone testified that if the herniation caused problems within the spinal cord, it would require surgical removal; however, at this point, he saw no indication for surgery. He testified Mr. Pinhasov's underlying degenerative disc disease "probably put him at a higher risk of developing chronic pain."

Dr. Rathbone attributed Mr. Pinhasov's memory problems and headaches to the post-concussion syndrome and mild brain injury. He stated that, after minor head injuries, the majority of patients who were going to lose their headaches do so within two months of the trauma — about a third have headaches more than four years after the injury and, in this group, the majority have them indefinitely. Dr. Rathbone opined that it "is improbable that Mr. Pinhasov will ever be headache-free." He explained that cervicogenic headaches are made worse by movements of the neck or by holding the neck flexed forwards, activities that are required in Mr. Pinhasov's employment. He can have the headaches even without neck pain.

Dr. Rathbone testified that his neurological findings are consistent with those of Dr. Levitan, Dr. Midah and with hospital records. He conceded that his conclusion that Mr. Pinhasov suffered a brain injury or that he has memory problems has its limitations because it is based largely on history provided by Mr. Pinhasov without neuropsychological testing or specialized MRI /SPECT investigations. Accordingly, I do not accept Dr. Rathbone's evidence of memory problems and post-concussion syndrome as they are not confirmed by accepted methods of testing, which he recommended, but were not conducted.

Analysis:

All of the health care practitioners who have treated or assessed Mr. Pinhasov since the accident agree, and I find, that he sustained soft-tissue injuries to his neck and back, as well as a mild head injury, as a result of the accident. The medical evidence indicates, and I find, that the accident also aggravated Mr. Pinhasov's pre-existing multilevel degenerative disc disease along multiple levels of his spine. It is also not in dispute and I find, that Mr. Pinhasov sustained herniated discs in his cervical and thoracic spine, as a result of the accident. The consensus of medical opinion is, and I find, that there is currently no evidence of nerve root impingement or spinal cord pathology resulting from the disc herniations. While the disc herniations are objective physical findings of pathology, I find the evidence is insufficient to support the contention that they are responsible for Mr. Pinhasov's subjective complaints of pain in his back and neck. I find that Mr. Pinhasov's headaches emanate from the soft-tissue injuries to his neck, and not from a brain injury sustained in the accident.

I find that in addition to his accident-related problems, Mr. Pinhasov suffered from atrial fibrillation and associated problems after the accident. However, I find the evidence is that Mr. Pinhasov's heart problems did not deteriorate significantly after the accident, except for a brief period in September 1996 when he suffered a mild stroke, related to his atrial fibrillation. He has fully recovered from the stroke. I find there is no evidence to suggest that Mr. Pinhasov's heart problems were aggravated by the accident.

As stated in various arbitration decisions, pain that is disabling is compensable under the Schedule, despite the absence of an objective physiological impairment that explains the applicant's subjective complaints of pain. In such cases, the credibility of the applicant is vital in assessing his/her claim. Credibility problems must be "significant and substantial and related to the relevant and material elements of the applicant's claim".³ In assessing credibility, allowance must also be made for fading recollections and psychological problems.⁴

Credibility:

I have found Mr. Pinhasov to be a credible witness who testified in a straightforward manner. I found no significant discrepancies in his testimony. I am satisfied the apparent inconsistencies in his testimony about the date of his return to part-time work and the benefits he received from Dr.Vertesi's treatment have been adequately explained and do not call his credibility into question. Other than submitting that Mr. Pinhasov has downplayed the seriousness of his heart problem after the accident, Guarantee did not seriously challenge Mr. Pinhasov's general credibility. None of the health care practitioners who have treated or assessed him, with the possible exception of Dr. Paitich, have questioned his credibility.

Conclusion about Disability:

I have found Mr. Pinhasov's pre-accident occupation as a travel agent involves sitting, working at a desk using a computer, and speaking on the telephone for prolonged periods. Before the accident, he worked up to 60 hours per week. After the accident, the evidence is that he is only able to work approximately 25 hours per week.

Many health care practitioners have commented on Mr. Pinhasov's functional ability; however, I find their opinions depended largely on whether they were prepared to believe Mr. Pinhasov's complaints of pain and disability, in the light of the physiological findings that are essentially soft tissue in nature, and their view about the nature of such injuries.

While the consensus of medical opinion is that most soft-tissue injuries heal within six months of the onset of trauma causing them, it is conceded that at least 10 percent of such patients will go on to develop symptoms of chronic pain syndrome that last a long time. The reasons for this are not known. I find Mr. Pinhasov fits in the small percentage of people whose soft-tissue injuries do not resolve within a short time.

I accept Mr. Pinhasov's testimony about his pain and his description of the functional problems he suffered as a result. I find he was diligent in seeking medical help and attempting to return to work when, by most accounts, his symptoms had not improved significantly. I find that he has made a genuine effort to return to full-time employment, but he has been prevented from doing so due to pain arising from the injuries he sustained in the accident.

Mr. Pinhasov's complaints of pain and disability, which have been recorded consistently by the health care practitioners he has been seeing over the years, have been supported by his family doctor, who has known him since he came to Canada in 1993; by his wife who observes him daily; and his employer who worked with him before and after the accident. I accept Mr. Pinhasov's testimony and find that he is unable to work more than 25 hours a week as a travel agent.

Guarantee suggests that Mr. Pinhasov's heart condition, rather than his accident-related problems, are responsible for his inability to work full time. I do not accept this submission. I have found Mr. Pinhasov was able to function fully as a travel agent before the accident, despite his heart problems. Mr. Pinhasov testified that his condition did not deteriorate significantly after the accident, except for the mild stroke in September 1996. Guarantee has adduced no evidence about the impact of Mr. Pinhasov's heart problem on his functional ability after the accident.

Mr. Pinahasov has conceded that his heart problem concerns him a great deal and has been a source of considerable stress for him after the accident, particularly after the mild stroke. Dr. Mor has reported and I have found that Mr. Pinhasov had other stressors in his life, unrelated to the accident.

Mr. Pinhasov does not have to prove that the accident is the sole cause of his disability. In order to establish a causal link between the accident and Mr. Pinhasov's disabling impairments, it is sufficient to demonstrate, on a balance of probabilities, that the accident significantly or materially contributed to his disability. In this case, I am satisfied that the evidence supports the finding that the accident is a significant factor that contributed to his disability.

As stated earlier in this decision, Mr. Pinhasov must prove, on a balance of probabilities, that he suffers a substantial inability to perform the essential tasks of his pre-accident employment. Substantial inability means not some disability and not total disability, but a significant inability which prevents an applicant from carrying out his or her essential tasks to a significant extent. I find that Mr. Pinhasov is limited by the injuries caused by the accident, to a level of employment of less than half of his pre-accident level. I find this difference constitutes a substantial inability that prevents Mr. Pinhasov from carrying out his essential tasks to a significant extent.

In summary, I find that Mr. Pinhasov has discharged the burden of proof for entitlement to IRBs, ongoing from December 17, 1997.

Sections 20 and 21 of the Schedule provide that if the insured person qualified for IRBs and continues to qualify for those benefits 104 weeks after the onset of the disability in respect of which he or she first qualified for those benefits, the insurer shall promptly deliver a written offer to the insured person with respect to the payment of weekly loss of earning capacity benefits.

I have found Mr. Pinhasov to be entitled to IRBs beyond the 104-week mark of the onset of his disability. Accordingly, I order Guarantee to pay Mr. Pinhasov IRBs until the provisions of Part VI of the Schedule with respect to the payment of loss of earning capacity benefits have been complied with.

SPECIAL AWARD:

Mr. Pinhasov claims a special award under section 282(10) of the Act because Guarantee unreasonably terminated his benefits and failed to address the issue of his head injury and his need for psychological treatment. Although I have awarded Mr. Pinhasov IRBs from the date of termination, I do not find this is an appropriate case in which to order a special award. I do not find that Guarantee unreasonably terminated Mr. Pinhasov's benefits. Guarantee waited over one year after receiving Dr. Lipson's second report before terminating his benefits. I do not find it unreasonable that Guarantee terminated the benefits after receipt of the the DAC report, which appeared to have addressed all of the issues current at the time. Subsequent MRI scan reports of thoracic disc herniations, while not considered by the DAC, have been found by other physicians to be of no clinical significance.

I do not find that Guarantee failed to address Mr. Pinhasov's head injuries. Mr. Pinhasov was examined by several neurologists and followed up by his family doctor. With regard to psychological treatment, the evidence is that it was Mr. Pinhasov who withdrew from treatment. No disability on the basis of psychological injury was claimed by Mr. Pinhasov.

EXPENSES:

The issue of expenses is deferred. I may be spoken to if the parties are unable to settle the issue of entitlement to arbitration expenses.

October 25, 2001

Asfaw Seife Senior Arbitrator (A)

Date

Neutral Citation: 2001 ONFSCDRS 154

FSCO A99-000522

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DAVID PINHASOV

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Guarantee Company of North America shall pay David Pinhasov income replacement benefits, from December 17, 1997 and ongoing, plus interest in accordance with section 68 of the Schedule, until the provisions of Part VI of the Schedule with respect to loss of earning capacity benefits have been complied with.

2. Mr. Pinhasov is not entitled to a special award under section 282(10) of the Act.

3. The issue of expenses is deferred.

October 25, 2001

Asfaw Seife Senior Arbitrator (A)

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
2. 2According to Borland’s Illustrated Medical Dictionary (28^th Ed.), atrial fibrillation is a recurrent, involuntary and abnormal muscle contraction of the heart in which a single or a small number of fibres, whose nerve supply has been damaged or cut off, act separately rather than as a coordinated unit, causing the atria to quiver continuously in a chaotic manner, instead of intermittently contracting and resulting in a totally irregular, often rapid ventricular rate.
3. 3See for example Hernandez and Zurich Insurance Company (FSCO A96-001123, August 28, 1998)
4. 4Salvaggio and Simcoe & Erie General Insurance Company and Wellington Insurance Company (OIC A-96-000978, October 15, 1997)