Neutral Citation: 2002 ONFSCDRS 191

FSCO A01–000839

BETWEEN:

ASHMEED ALI BOCAS

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

Before:

Catherine Skinner

Heard:

July 15, 16, 17, 18, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Sulaiman A. Mangal and Zubin Zarolia for Mr. Ali Bocas

Ian D. Kirby for Wawanesa Mutual Insurance Company

The Applicant, Ashmeed Ali Bocas, was injured in a motor vehicle accident on March 29, 2000. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule. Wawanesa terminated weekly income replacement benefits on July 21, 2000. Wawanesa also denied payment of certain medical benefits under section 14 of the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Ali Bocas 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. Ali Bocas entitled to income replacement benefits at a rate of $400 per week after July 21, 2000 under Part II of the Schedule?
Is Mr. Ali Bocas entitled to medical benefits claimed under section 14 of the Schedule for chiropractic treatments he received from Dr. Jeffrey Finewax, and for physiotherapy and massage treatments he received from Metro Orthopaedic Rehab Clinics Ltd. ("Metro Ortho Rehab")?
Is Wawanesa liable to pay Mr. Ali Bocas' expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Ali Bocas liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Ali Bocas entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Mr. Ali Bocas is entitled to income replacement benefits at a rate of $400 per week from July 22, 2000 to October 4, 2000 under Part II of the Schedule.
Mr. Ali Bocas is entitled to $1,522 for chiropractic treatment under section 14 of the Schedule.
Mr. Ali Bocas is not entitled to massage and physiotherapy treatments from Metro Ortho Rehab under section 14 of the Schedule.
Mr. Ali Bocas is entitled to interest on the overdue income replacement benefits and medical benefits pursuant to subsection 46(2) of the Schedule.
If the parties are unable to agree on expenses of this hearing, that issue may now be addressed.

On March 29, 2000, Mr. Ashmeed Ali Bocas was driving his car to work in the morning when he collided with another vehicle at an intersection. Mr. Ali Bocas describes being jolted back and forth upon impact. He experienced pain in his chest, neck, upper back and left knee. The police and an ambulance attended at the scene. Mr. Ali Bocas went to the hospital with his brother-in-law. He was released after two hours with a neck brace and given a prescription for muscle relaxants. Mr. Ali Bocas saw his family doctor, Dr. David Saul, the following day and has continued to see him since this accident.

Mr. Ali Bocas was employed as a welder at Otema Store Interiors at the time of the accident. He claims that he is unable to resume his welding job as a result of his accident injuries.

Wawanesa paid income replacement benefits to Mr. Ali Bocas until July 21, 2000. The income replacement benefits were terminated on the basis of an insurer's examination report by Dr. John Zeldin, an orthopaedic surgeon, and the findings of a Functional Capacity Evaluation conducted by Riverfront Medical Evaluations, both dated June 6, 2000.

Wawanesa paid for a course of physiotherapy and massage therapy treatments received by Mr. Ali Bocas at Metro Ortho Rehab until June 2000. It denied subsequent treatment plans based on the findings of a medical rehabilitation assessment conducted by Accident Injury Management, a Designated Assessment Centre, on October 4, 2000 (the "Med Rehab DAC"). It also denied payment of chiropractic treatments administered by Dr. Finewax.

Income Replacement Benefits:

Mr. Ali Bocas claims entitlement to income replacement benefits for the period after July 21, 2000. To qualify for income replacement benefits, Mr. Ali Bocas must establish that he suffered a substantial inability to perform the essential tasks of his pre-accident employment as a result of the injuries he sustained in the accident since July 22, 2000.

Essential Tasks:

There are two Functional Capacity Evaluation reports in evidence: one prepared by Riverfront Medical Evaluations on June 6, 2000, and the other prepared by Vocan Health Assesors on May 6, 2001. There is also an Ergonomic Workplace Assessment prepared by Vocan on May 31, 2001. Based on these reports, I find that the essential tasks of Mr. Ali Bocas' pre-accident employment include the following: working from a standing or sitting position, the ability to hold his arms in a static position at shoulder level for two minutes at a time, the ability to occasionally lift weights of up to 30 lbs, and the ability to weld pieces of metal together holding a welding torch weighing approximately 6 lbs.

I also find that Mr. Ali Bocas was occasionally required to lift weights of between 30 and 80 lbs. The Vocan Ergonomic Worksite Assessment (the "Worksite Assessment") indicates that Mr. Ali Bocas was occasionally required to lift weights of over 30 lbs, with "occasional" being defined as between 0 and 33 per cent of his work time. The Worksite Assessment estimates that the lifting component of Mr. Ali Bocas' employment constitutes approximately 8 per cent of his duties.

I also accept the conclusion of the Worksite Assessment that Mr. Ali Bocas was occasionally required to reach above shoulder level during his employment.

Welding is classified in the Dictionary of Occupational Classifications as requiring medium strength. I accept that this is an appropriate classification.

Mr. Ali Bocas's Evidence:

Mr. Ali Bocas testified that he experienced pain in his chest, upper back, neck, right shoulder and left knee immediately after the accident. He indicated that his pain has continued unabated since that time and prevents him from accomplishing the essential tasks of his pre-accident employment as a welder. Specifically, he indicated that he could not stand or sit for prolonged periods of time or use his upper body to handle the tools of his trade. Mr. Ali Bocas gave inconsistent evidence. During his examination-in-chief, Mr. Ali Bocas indicated that his pain had not improved since the time of the accident. Under cross-examination, he acknowledged that this pain had improved significantly from March 2000 to September 2000, and that, in October 2000, he reported between a 70 per cent and 90 per cent improvement to the Med Rehab DAC assessors.

Mr. Ali Bocas' testimony is inconsistent with the surveillance evidence introduced by Wawanesa. Mr. Ali Bocas objected to this evidence because he received it during the week before the hearing. Subsection 40(1) of the Dispute Resolution Practice Code (the Code) requires production 30 days prior to the hearing. Mr. Ali Bocas did not present a persuasive argument that he was prejudiced by the late production of this evidence or that he was unable to properly respond to the evidence. I find that Mr. Ali Bocas had adequate time to review the surveillance evidence and to prepare his case. I overruled his objection and admitted the surveillance evidence pursuant to section 81 of the Code.

Mr. Ali Bocas' testimony concerning his functional abilities is difficult to reconcile with the surveillance evidence. On June 25, 2002, Wawanesa's surveillance shows Mr. Ali Bocas carrying a car jack and other tools in his right hand from his garage to a car. The surveillance shows Mr. Ali Bocas entering a poultry plant, emerging from time to time during the day, and leaving after approximately 12 hours.

The investigator, Mr. David Hoffmann, testified that he entered the poultry plant during the day on June 25, 2002 and observed Mr. Ali Bocas welding. Mr. Ali Bocas admitted that he has been going to his cousin's poultry plant approximately once every three weeks since February 2002 and acknowledged that he was welding for a total of 15 minutes spread throughout the day on June 25. He denied being paid for this work.

I do not accept Mr. Ali Bocas' explanation for the activities shown in the surveillance evidence. The surveillance is inconsistent with his own description of his limitations. Mr. Ali Bocas is shown carrying a 25 lb car jack in his injured right arm, and spending 12 hours at a poultry plant, part of which time he spent welding. Mr. Ali Bocas did not report his work at the poultry plant to any of his medical advisors or to Mr. Kumove, a vocational rehabilitation consultant.

Based on Mr. Ali Bocas' inconsistencies, I find that his evidence is unreliable and I prefer the evidence of the medical experts on the issue of his ability to perform the essential tasks of his pre-accident employment.

Medical Evidence:

Mr. Ali Bocas relies on the opinions of Dr. Saul, his family doctor, Dr. Michael Kliman, an orthopaedic specialist, Dr. David Shulman, a pain specialist, and Dr. Julian Lo, a physiatrist.

Dr. Saul testified at the hearing. Mr. Ali Bocas sought to have Dr. Saul accepted as an expert in the diagnosis and treatment of chronic pain syndrome. Dr. Saul has an interest in chronic pain disorders but does not have any formal training in this area. I did not accept Dr. Saul as a chronic pain specialist.

Dr. Saul saw Mr. Ali Bocas on March 30, 2000 with complaints of upper back, chest, and knee pain. On April 27, 2000, he completed a disability certificate which indicated that Mr. Ali Bocas was unable to return to work due to the pain in his neck and back, while expecting that he could return to work within three to four weeks. In June 2000, Dr. Saul suggested that Mr. Ali Bocas undertake a work-hardening program in anticipation of his return to work. Mr. Ali Bocas did not pursue a work-hardening program.

Dr. Saul testified that Mr. Ali Bocas was improving throughout the summer of 2000 and that he intended to return to work on September 5, 2000. Mr. Ali Bocas' pain increased in September 2000 and he did not return to work. By January 2001, Dr. Saul suspected that Mr. Ali Bocas was suffering from chronic pain syndrome and was unable to return to his pre-accident employment. Dr. Saul did not conduct any functional testing of Mr. Ali Bocas.

I am not persuaded by Dr. Saul's evidence that Mr. Ali Bocas has been substantially unable to perform the essential tasks of his employment up until the date of the hearing. Dr. Saul did not have complete information about Mr. Ali Bocas' employment tasks or his post-accident work and he did not conduct functional testing. I am, however, prepared to accept his evidence that Mr. Ali Bocas continued to improve throughout the summer of 2000 but was unable to return to work during that time. Dr. Saul examined Mr. Ali Bocas on several occasions during the summer of 2000 and he testified that Mr. Ali Bocas continued to experience pain which would prevent him from performing any heavy lifting or physical work during that time. Dr. Saul was recommending a work-hardening program in July and August 2000, and felt that Mr. Ali Bocas required additional strengthening before returning to work.

I do not accept Dr. Saul as an expert in chronic pain disorders. I attach little weight to his view that Mr. Ali Bocas is prevented from returning to work because he suffers from that condition.

Mr. Ali Bocas relies on the opinions of Dr. Shulman and Dr. Lo. Both doctors rendered a written diagnosis that Mr. Ali Bocas suffers from chronic pain syndrome but neither addresses the question of his ability to accomplish the essential tasks of his employment. They did not conduct functional testing and I draw no conclusion from their general diagnosis of chronic pain syndrome.

In this regard, I agree with the analysis of Arbitrator Naylor in Bertsokouklis and Liberty Mutual Fire Insurance Company² where she found that, "To succeed in a weekly income benefit claim based on chronic pain, applicants must prove that their pain and other symptoms render them unable to perform their essential tasks. As has been stated in many arbitration decisions, pain does not equate to disability."

Mr. Ali Bocas also relies on the opinion of Dr. Kliman, who examined him on three occasions. On May 10, 2001, Dr. Kliman examined Mr. Ali Bocas as part of a Functional Capacities Evaluation performed by Vocan Health Assessors. Dr. Kliman issued reports on October 16, 2000, May 10, 2001 and November 21, 2001, concluding that Mr. Ali Bocas could not return to his pre-accident employment. In the May and November reports, he specifies that Mr. Ali Bocas is unable to return to work due to ongoing pain in his upper back, right arm and shoulder.

Dr. Kliman's opinion is based on Mr. Ali Bocas' difficulty in performing extended overhead positioning of his right shoulder and heavy and overhead lifting with his right upper arm. In the Functional Capacities Evaluation report of May 10, 2001, Dr. Kliman states that "He [Mr. Ali Bocas] would have difficulty with extended overhead positioning of his shoulder. He would have difficulty with heavy lifting activities with the right upper arm. He would also have difficulties with light overhead lifting involving his right upper extremity. Welder work that is done without these positionings taken into account would be tolerated."

Although I can accept Dr. Kliman's opinion that Mr. Ali Bocas has partial overhead limitations in using his right arm, this alone is insufficient to convince me that he suffers a substantial inability to perform the essential tasks of his employment. I find that overhead extension and heavy lifting constitute relatively small portions of Mr. Ali Bocas' employment tasks. Lifting or carrying weights is estimated by the Worksite Assessment as taking up 8 per cent of his time at work, and the Worksite Assessment and Med Rehab DAC reports indicate that he is only occasionally required to reach overhead.

In considering entitlement to income replacement benefits, Arbitrators have accepted that, "…it is not some inability to perform key tasks, but a sizeable inability that is compensable."³ Applying this reasoning, I find that although Mr. Ali Bocas may continue to be limited in his ability to adopt certain postures, this does not equate to a sizeable inability to perform his essential tasks. The Functional Capacities Evaluation report by Vocan of May 10, 2001 indicates that Mr. Ali Bocas is not able to lift weights of over 35 lbs on a frequent basis and concludes, on that basis, that he is not able to work at full capacity. I find that lifting weights of over 35 lbs is a relatively small portion of Mr. Ali Bocas' employment tasks, and that his inability to perform this task on a frequent basis does not constitute a substantial inability to perform the essential tasks of his employment.

Mr. Kumove, a vocational consultant, testified at the hearing on behalf of Mr. Ali Bocas. Mr. Kumove based his opinion that Mr. Ali Bocas is unable to return to work as a welder on the medical reports that he reviewed. Mr. Kumove is not medically trained and is not qualified to determine whether Mr. Ali Bocas was physically able to accomplish the essential tasks of a welder. I give his evidence very little weight.

Wawanesa relies on the report and testimony of Dr. John Zeldin who examined Mr. Ali Bocas on June 6, 2000. As a result of that examination, Dr. Zeldin concluded that Mr. Ali Bocas was able to accomplish all of the essential tasks of his employment as a welder. He acknowledged in cross-examination that he was not aware of the specific tasks of welding. Dr. Zeldin accepted that Mr. Ali Bocas may experience residual discomfort as a result of his injuries but stated that this was not enough to prevent him from returning to work.

I do not attribute significant weight to Dr. Zeldin's opinion concerning Mr. Ali Bocas' ability to return to work in June 2000. Dr. Zeldin acknowledged that he did not have any specific knowledge of the essential tasks of Mr. Ali Bocas' pre-accident employment in arriving at his conclusion.

Wawanesa also relies on the conclusion of a Functional Capacities Evaluation conducted by Riverfront Medical Evaluations on June 6, 2000. It concluded that Mr. Ali Bocas demonstrated the ability, at times, to meet the Medium Level of work capacity, which is the level ascribed to welding. I do not attach significant weight to the FCE's conclusions about Mr. Ali Bocas' ability to return to work in June 2000. The conclusion that Mr. Ali Bocas is at times able to meet the strength requirements of his employment is guarded and does not support a finding that he is substantially able to accomplish the essential tasks of his employment.

Wawanesa relies on the evidence produced by the Med Rehab DAC. Michael Drinkwater is a physiotherapist and examined Mr. Ali Bocas at the Med Rehab DAC. He testified that Mr. Ali Bocas' pain complaints were inconsistent and that the assessors were unable to reproduce the pain through testing. Mr. Ali Bocas exhibited a full range of motion in all areas and was functioning at an advanced level, despite his own perception of his disability.

The DAC concluded that Mr. Ali Bocas could perform a variety of tasks at a medium strength level, which includes occasional lifting of up to 50 lbs and more frequent lifting of lighter weights. Mr. Ali Bocas demonstrated the ability to occasionally lift 50-lb-weights and to occasionally work with his arms overhead. He reported to the DAC assessors that he was overall 75 per cent improved from his post-accident condition.

The Med Rehab DAC was not assessing Mr. Ali Bocas's ability to perform the essential tasks of his employment. Nevertheless, it conducted functional testing with reference to his employment tasks and I find that it produced reliable evidence of Mr. Ali Bocas' functional abilities. Mr. Ali Bocas exhibited a full range of motion in his neck and shoulder areas. His ability to lift and carry weights of over 30 lbs was restricted, but this is an occasional task and these restrictions are not sufficient to justify a finding that Mr. Ali Bocas is substantially disabled from performing his job as a welder. Mr. Ali Bocas' abilities were unrestricted in all areas except lifting and carrying weights. Specifically, Mr. Ali Bocas was able to sit, stand, and reach forward for a period of 2 minutes and 44 seconds.

The DAC assessors report that Mr. Ali Bocas told them that he was 90 per cent improved in his back and neck, and between 75 per cent and 80 per cent improved in his shoulder. He reported an overall 75 per cent improvement since the time of the accident. Mr. Ali Bocas did not adequately explain why he told the examiners that he had recovered 75 per cent of his functional abilities overall but continued to believe that he was too disabled to return to work.

I find that, as of October 4, 2000, which is the date of the Med Rehab DAC assessment, Mr. Ali Bocas was reporting an overall 75 per cent improvement from the time of the accident and that he was unrestricted in his ability to perform the essential tasks of welding, including sitting, standing, and reaching forward. Mr. Ali Bocas was restricted in his abilities to lift, although he demonstrated some ability to lift weights in all weight categories. He stopped performing the lifting and carrying exercises towards the end of each exercise. I do not find that Mr. Ali Bocas' restrictions in lifting by October 2000 are so significant that they justify a conclusion that he was substantially unable to perform the essential tasks of his employment at that time.

Mr. Ali Bocas testified that he has enjoyed the same level of functional ability from the time of the Med Rehab DAC until the present. The surveillance evidence indicates that Mr. Ali Bocas can currently carry 25 lb weights in his right arm and does have the ability to weld. I infer that Mr. Ali Bocas had those same abilities in October 2000.

The results of the Med Rehab DAC are consistent with Dr. Zeldin's conclusions, the surveillance evidence and Mr. Ali Bocas' admitted abilities at the time of the DAC assessment.

With respect to Mr. Ali Bocas' functional abilities for the period between July 21, 2000, when income replacement benefits were terminated, and October 4, 2000, the date of the Med Rehab DAC, I prefer Dr. Saul's evidence over that of Dr. Zeldin and the Riverside FCE. Dr. Saul examined Mr. Ali Bocas on several occasions during this time and observed that he was improving but was not yet able to return to work. On this basis, I find that Mr. Ali Bocas is entitled to income replacement benefits at the rate of $400 per week from July 22 to October 4, 2000.

For the period after October 4, 2000, I do not rely on Dr. Saul's evidence concerning Mr. Ali Bocas' ability to return to work. In light of my reservations about Dr. Saul's evidence overall, I do not prefer his opinion over the evidence obtained at the Med Rehab DAC on October 4, 2000. The Med Rehab DAC produced reliable evidence of Mr. Ali Bocas' functional abilities which does not coincide with Dr. Saul's evidence. I prefer the evidence of the Med Rehab DAC and find that Mr. Ali Bocas was substantially able to perform the essential tasks of his pre-accident employment by October 4, 2000.

Medical Benefits:

Mr. Ali Bocas claims entitlement to medical benefits under section 14 of the Schedule for chiropractic treatments received from Dr. Finewax in the amount of $1,522, and for physiotherapy and massage treatments received at Metro Ortho Rehab in the amount of $2,440. Mr. Ali Bocas must establish that these expenses are reasonable and necessary.

On March 30, 2000, Dr. Saul recommended that Mr. Ali Bocas begin receiving treatments from Dr. Finewax in relation to his accident-related injuries. Beginning March 30, 2000, Mr. Ali Bocas attended for treatments with Dr. Finewax several times per week. He testified that the chiropractic treatments provided him with some temporary relief of his pain.

In evaluating the reasonableness and necessity of treatments and services under section 14, arbitrators have considered, amongst others, the following factors: whether the rehabilitative goals have been met, the subjective benefit of the treatment to the person being treated and whether the treatment relieves pain.⁴ The relief of pain has been found to be a legitimate rehabilitative goal.⁵

I find that the chiropractic treatments received from Dr. Finewax are reasonable and necessary. They were recommended by Dr. Saul and Mr. Ali Bocas testified and reported to his medical assessors that they helped to relieve his pain. Wawanesa did not introduce any contradictory evidence concerning the chiropractic treatments or demonstrate that the chiropractic treatments received after March 30, 2000 related to anything other than injuries sustained in the March 29 accident. The Med Rehab DAC does not refer to the chiropractic treatments. Mr. Ali Bocas is entitled to a medical benefit of $1,522 for chiropractic treatments under section 14 of the Schedule.

Mr. Ali Bocas also claims the cost of physiotherapy and massage treatments received at Metro Ortho Rehab from June 2000 to February 2001. Wawanesa paid for the cost of treatments received at Metro between April and June 2000. Wawanesa denied all three subsequent treatment plans produced by Metro. The two treatment plans of June and July 2000 were the subject of a Med Rehab DAC assessment conducted by Accident Injury Management Clinic in October 2000. In their report of October 25, 2000, the DAC assessors concluded that the treatments contemplated in those two treatment plans were not reasonable and necessary.

Mr. Ali Bocas testified that he went to Metro several times per week, beginning in April 2000. He received physiotherapy and massage treatments and participated in an exercise program. He admitted that he did not receive benefit from these treatments after the summer of 2000.

Mr. Ali Bocas was referred to Metro by his legal advisors and not by his family doctor, Dr. Saul, or any other medical practitioner. Dr. Saul testified that he did not have any specific knowledge of the types of treatments being administered at Metro throughout the period in question. None of Mr. Ali Bocas' other doctors commented on the reasonableness or necessity of the treatments in their reports.

Shaileen Mohammed, a physiotherapist with Metro, testified at the hearing. She indicated that she first assessed Mr. Ali Bocas in April 2000 and administered his treatments at Metro until August 2000. Ms. Mohammed indicated that Mr. Ali Bocas complained of and was treated at Metro for pain through his upper back, neck and left shoulder.

Ms. Mohammed testified that Mr. Ali Bocas complained of pain in his left shoulder at his assessment, and received treatment for his left shoulder. She indicated that Mr.Ali Bocas exhibited good mobility and did not complain of pain in his right shoulder. None of Metro's treatment plans refer to any right shoulder pain or prescribe any treatment for the right shoulder. This evidence is at odds with the balance of the evidence in this case, indicating that Mr. Ali Bocas injured his right shoulder.

Mr. Michael Drinkwater of the Med Rehab DAC testified at the hearing. He stated that he and the other assessors concluded that the treatments were not reasonable and necessary based on the functional testing and their determination that Mr. Ali Bocas was not obtaining symptomatic benefits from the treatments.

Mr. Ali Bocas has not demonstrated that the expenses incurred at Metro Ortho Rehab were reasonable and necessary. The treatments relate, in part, to injuries to Mr. Ali Bocas' left shoulder, which was not injured in the accident. There is little objective medical evidence to support the reasonableness and necessity of these treatments and the Med Rehab DAC concluded that they were not reasonable and necessary. I do not find that the expenses claimed are reasonable and necessary.

EXPENSES:

If the parties are unable to agree on expenses of this hearing, that issue may now be addressed.

December 3, 2002

Catherine Skinner Arbitrator

Date