Neutral Citation: 2003 ONFSCDRS 136

FSCO A02-000039

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BRIAN C. SMILLIE

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: David J. Evans

Heard: December 16, 17, 18, 19 and 20, 2002, in London, Ontario

Appearances: Nicholas W. Fursman for Mr. Smillie Matthew G. Duffy for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Brian C. Smillie, was injured in a motor vehicle accident on January 6, 1999. He applied for and received, among other benefits, weekly income replacement benefits (IRBs) from State Farm Mutual Automobile Insurance Company, payable under the Schedule.¹ State Farm terminated IRBs on January 16, 2001, on the basis that he did not meet the post-104 week test for IRBs — as discussed below, it applies more than 104 weeks after the onset of disability. The parties were unable to resolve their disputes through mediation, and Mr. Smillie applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Smillie entitled to receive weekly income replacement benefits from January 17, 2001, pursuant to section 4 of the Schedule?

2. Is State Farm liable to pay Mr. Smillie's expenses in respect of the arbitration under section 282(11) of the Insurance Act.?

3. Is Mr. Smillie liable to pay State Farm's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

4. Is Mr. Smillie entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Although the pre-hearing identified as an issue State Farm's potential liability to pay a special award pursuant to subsection 282(10) of the Insurance Act, the issue was abandoned in submissions.

Result:

1. Mr. Smillie is not entitled to income replacement benefits from January 17, 2001, pursuant to section 4 of the Schedule.

2. The parties may now speak to me on the issue of expenses.

EVIDENCE AND ANALYSIS:

Mr. Smillie had worked several years as a mover when he suffered a disability on January 6, 1999. While returning from a freelance moving job he lost control of his truck, slid into the opposite lane and was struck broadside by another pickup truck. The impact was severe, but he only suffered soft tissue injuries and did not go to the hospital. He saw Dr. Dolly Nahri, his family doctor, on January 11, 1999. She ordered X-rays, which showed pre-existing spinal degeneration.

Mr. Smillie's major complaints were of severe low back pain and spasms with radiation into his legs and feet, especially on the right, neck pain with initially some numbness even into his face, and headaches and sleep problems.

I will set out some findings for context.

In July 2001, Southwestern Rehabilitation Assessments, a Disability Assessment Centre (DAC), conducted a post-104 week Disability DAC assessment to determine the extent of Mr. Smillie's disability at 104 weeks after the accident. The DAC included a Functional Capacity Evaluation (FCE) that identified endurance limitations and fatigue. The team (physiotherapist, psychologist, physiatrist and occupational therapist) found that Mr. Smillie's main problem was his inability to stay in one position, especially sitting. However, it found that nonetheless he did not meet the post-104 week test, provided he worked within the recommended permanent work restriction of sitting or standing as required.

Similar work restrictions were recommended by Dr. David C. Taylor, orthopaedic specialist, who saw Mr. Smillie twice. His guidelines for pacing included the avoidance of heavy lifting, continuous repetitive bending or twisting, or standing or sitting for prolonged periods without at least briefly alternating position. Dr. John C. Clifford, physiatrist, who thought Mr. Smillie's mechanical low back pain likely preceded the accident, recommended that he minimize prolonged stooping or squatting, repetitive bending or twisting, or repetitive or heavy lifting at the waist.

I have referred to the post-104 week test. Mr. Smillie received benefits because he is a person insured by State Farm who met the initial pre-104 week test for IRBs: subsection 5(1) of the Schedule required State Farm to pay him IRBs "during the period that the insured person suffers a substantial inability to perform the essential tasks" of his employment - the "own job" test. A second "any suitable job" test applies after 104 weeks: pursuant to paragraph 5(2)(b), the insurer does not have to pay IRBs "for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience."

State Farm terminated Mr. Smillie's IRBs at approximately the 104 week mark on the basis that Mr. Smillie did not meet the second "any suitable job" test. As noted above, the post-104 week Disability DAC later concurred.

The issues in this case thus turn on the range of all suitable jobs and the extent of Mr. Smillie's inability to perform the duties of the possible suitable jobs. The Disability DAC identified "NOC² 0641 Protective Services Manager" and "NOC 6411³ Retail Sales" as suitable alternative jobs for Mr. Smillie, within his limitations. Mr. Smillie rejected these jobs and only looked for them just before the hearing.

Since he rejected the DAC's suggested jobs, the initial onus on Mr. Smillie is to present evidence that he made a bona fide effort to identify, try to find or attempt some sort of "suitable" employment but failed because his injuries prevent him from engaging in that employment.⁴ I find that Mr. Smillie does not meet that initial onus.

Therefore, Mr. Smillie has the onus to adduce strong medical evidence to make out a prima facie case for his total disability beyond 104 weeks.⁵ Mr. Smillie and his experts testified that his chronic pain makes him totally disabled from employment. I find that Mr. Smillie has not met this onus.

However, if I am incorrect, and Mr. Smillie has made out a prima facie case for disability beyond 104 weeks, it has been said that the onus is then on the Insurer "to provide credible, specific employment alternatives that would be within [his] capabilities, and fulfill the criteria set out by the Schedule."⁶ I find that State Farm has met this onus.

For those reasons, I find that Mr. Smillie is not entitled to post-104 week benefits.

The first issue is Mr. Smillie's attempt, or lack thereof, at identifying suitable alternative employment, which requires me to first set out Mr. Smillie's education, training or experience. I will then discuss Mr. Smillie's post-accident medical status and credibility. I will conclude with the alternative employments suggested by the DAC and State Farm.

Education, Training or Experience

Mr. Smillie testified that he was born October 9, 1948. He has been married for over 11 years and has two children, a boy and a girl.

Mr. Smillied testified that at school he did well in English — having won a county public speaking contest in grade 9 — and in history, science and agriculture, but not as well in math.

He described himself as a "bit of a rebel" in leaving school at age 15 before finishing grade 11. He worked briefly doing construction work in farm pens before starting his career of buying and selling horses.

Mr. Smillie is bright,⁷ and he showed a remarkable memory for facts and figures, such as those related to the start of his career. He testified that he had always loved thoroughbred horses: "When I was a kid I was reading pedigrees late at night or I was in the barn helping mares foal. Grandpa imported Clydesdales from Scotland." At age 16 he went to Kentucky, fell in love with the horse business, and then tried to go to the annual sales. His father gave him $750 at age 15 to buy his first horse; her foal sold for $1,800 and won $56,000 at the track. Between the ages of 15 and 19 he made 93 horse deals; after 10 deals, he bought the first of an eventual half dozen brood mares. Meanwhile, he stayed and worked on the family farm until its sale (when he was in his mid twenties), and he shuttled regularly between Kentucky and Ontario while keeping up-to-date through horse magazines and catalogs.

Mr. Smillie testified that around age 30 he moved to Red Deer, Alberta, and met "Dr. Smith," a chiropractor. Dr. Smith asked him his ambition, which was to be at the "top of the thoroughbred world." A few days later, Dr. Smith staked him US $300,000, on the understanding that after repayment they would continue in partnership.

Mr. Smillie testified that he continued traveling to Kentucky. He repaid Dr. Smith's stake, then in partnership with him started buying and selling mares. In 1984 and again in 1985 the partners sold a horse for one million dollars. Mr. Smillie thought they were building a brood mare band to install on a Kentucky farm.

With respect to his salesmanship, Mr. Smillie testified that he sold at auction or through agents: Bloodstock agents, like real estate agents, work on a commission basis to find buyers for thoroughbred horse owners. He was not an agent because he was better at dealing with horses than with people and was "not much of a salesman."⁸ His success arose from his skill at picking horses — using a combination of pedigree knowledge and appreciation for physical attributes — and "luck." His luck included having 20 percent of his foals become "stake horses," when the norm is less than 2 percent.⁹

Mr. Smillie was unlucky in choosing a partner. Mr. Smillie testified that business started well, and he thought he would be a millionaire by age 40. He gave exact figures for the partners' purchases, winnings and sales. Unfortunately, in September 1985 the bank called the line of credit: Dr. Smith had been involved in Alberta real estate and had put the partnership deeply in debt. Mr. Smillie stayed in Kentucky to pay off the bank debt by selling assets, including the horses. He swore he would "never touch a horse again" until he could own it with his own money.

Mr. Smillie testified that those years were "brutal": he had to borrow $10,000 to feed the horses, lost his new pickup truck, and ended up walking. The bank and other creditors were paid off by about 1987 or 1988. He "hung around a couple more years" hoping to begin again but could find no sponsors.

I find Mr. Smillie's testimony vague about his business activities after the debt repayment, especially in contrast with the great detail he provided about the horse business. This creates a gap in my knowledge of any transferable skills he developed during that period.

Mr. Smillie testified that after repaying the bank in 1987 or 1988, he "survived" and earned a "meagre existence" by "being resourceful" and doing favours for people, such as helping with horses or supervising a barn. He never worked with official sanction, having failed in his attempt to obtain a work permit. His first wife was an American, and he stocked shelves in her father's liquor store once or twice a week for cash. He did not think he operated the cash register.

Mr. Smillie returned to Canada in 1991.

Return to Canada

Mr. Smillie testified that he started working at Eaton's delivery in the fall of 1991, "slugging furniture 8 to 4." In 1992, in addition to working at Eaton's, he stocked shelves at a grocery store. He was never hired full-time at Eaton's, so around 1993 he started weekend work at AMJ Atlas Van Lines (AMJ).

Around 1995, after Eaton's closed, AMJ hired him for household and office moves in South-western Ontario. He also starting seeing Dr. Nahri, a specialist in family medicine, for pains in his fingers and toes and for occasional pains arising from work accidents; the parties disputed whether Mr. Smillie's current problems are work— and not accident-related.

Mr. Smillie testified that he obtained an "AZ" license¹⁰ to drive tractor trailers. AMJ, not needing more drivers, recommended him to Courtney's United Van Lines in Woodstock, where he started work in the spring of 1998 and was soon driving tractor trailers. He was responsible for the safe removal, packing and unpacking of all furniture brought out by the "swampers," his assistants.

Mr. Smillie estimated that he earned additional unreported income of about $1,000 a year.¹¹ In addition to freelance moving, he would occasionally buy and recondition old furniture like dressers to sell as antiques. He no longer does this because the furniture is too large, and he has no experience buying and selling lighter items like china.

The Employer's Confirmation of Income, signed by Roger Campbell of Courtney's Moving and Storage, shows that Mr. Smillie worked 30 weeks for Courtney's from March 5, 1998, and in each of the four weeks before the accident earned $741. Mr. Smillie testified that he had received two raises. Mr. Smillie's income tax return for 1998 showed earnings of $27,572.

Mr. Smillie testified that at the time of the accident he was not intending to return to horse breeding unless the opportunity arose: although moving was not his "favourite line of employment," he would not have left it without another job in hand.

Suitable Employment Identified by the Applicant

Has Mr. Smillie met the onus of proving he made a bona fide effort to identify, try to find or attempt some sort of "suitable" employment that failed due to his injuries?

Mr. Smillie referred to the L.F. case¹² for the proposition that an applicant meets this onus by requesting and attending a Disability DAC assessment. However, the decision implicitly requires that the applicant accept the DAC's findings on suitable employment. That is not the case here. Therefore, I find that Mr. Smillie did not meet the onus simply by attending the DAC: he must suggest alternatives to the DAC's findings.

Mr. Smillie submitted that he did suggest alternatives. These were his attempts: to return to the horse trade; to engage in long-distance trucking; to find work in a paint shop for military vehicles; and, to find the jobs that Ms. Susan Knutson, vocational rehabilitation specialist, had identified as suitable.

Return to the Horse Trade

Mr. Smillie's attempt to return to the horse trade is intermixed with State Farm's attempts to return him to his previous job and then to find him a suitable alternative. I will first set out this background.

Shortly after the accident, State Farm retained Ms. Elizabeth Fox, physiotherapist at Pursuit Health Management, to manage his recovery, such as by arranging massage therapy. State Farm then obtained an Occupational Therapy Job Analysis by Ms. Susan Korsmit of Rehability Occupational Therapy at the end of March 1999. Ms. Korsmit concluded that Mr. Smillie was not yet ready to return to work and commenced work hardening for him in April 1999. The work hardening stopped in May at Dr. Nahri's request; Mr. Smillie never did any further work hardening.

With respect to the stoppage, Dr. Clifford, physiatrist, who assessed Mr. Smillie July 19, 1999, felt that Dr. Nahri should not have interrupted the work hardening and that with its resumption Mr. Smillie would be able to return to work. (In a later report, after reviewing the pre-accident records, Dr. Clifford felt that Mr. Smillie could not work as a mover due to the degeneration in his spine but could work at some other employment with restrictions.)

In October 1999, since Ms. Fox felt Mr. Smillie could not return to moving, Ms. Korsmit set up a transferable skills analysis (TSA). The TSA by Disability Management Associates of October 27, 1999 listed such alternative jobs as courier/messenger or shipper and receiver, provided they allowed frequent positional changes and significantly reduced lifting requirements.

In late 1999, Ms. Fox started to end her involvement with Mr. Smillie, and State Farm retained Ms. Jody Abbot, kinesiologist,¹³ to investigate other employment. Ms. Abbot met Mr. Smillie on December 1, 1999, and set up a Functional Capacities Evaluation at the Canadian Back Institute ("CBI") for December 21 and 22, 1999. The CBI concluded that Mr. Smillie could not return to work as a mover.

In her Initial Evaluation Report of January 21, 2000, Ms. Abbot reported the CBI's results. She wrote that Mr. Smillie's previous employer had high expectations with respect to the amount of work hours he had to perform, that in July and August 1998 he was working 55 to 100 hours a week in a physically demanding job, and that he had minimal interest in returning to the driving/moving industry. To somewhat similar effect, Ms. Beth Morris wrote in her Vocational Rehabilitation Status Report of November 29, 2001 that he "did not particularly enjoy moving work but liked the pay and long hours it afforded. The physically demanding work was for him a means of 'therapy' to recover from his business losses in the U.S."

Ms. Abbot also noted that Mr. Smillie told her he had "20 years of experience breeding, racing and selling horses in the Kentucky area. Mr. Smillie suggested that prior to returning to Canada in 1991 he was 'partner in a thoroughbred business . . .'" and that he hoped to return to the thoroughbred business in the near future. I note that, as he did later with Ms. Morris, Mr. Smillie did not discuss the gap in his employment after the business failure with Ms. Abbot.

The recurrent theme for the next year appears in Ms. Abbot's report: Mr. Smillie hoped to return to the thoroughbred business. Her reports show that accordingly he was not interested in work hardening, vocational rehabilitation or job searching — other than as an entrepreneur. For instance, in March 2000 he discussed selling antiques or hay in the United States. Mr. Smillie testified that financing prevented him from having the opportunity of finding out if he could sell antiques in the United States (to borrow his phraseology), and a drought made hay sales uneconomical.

Ms. Abbot requested an additional Transferable Skills Analysis to consider Mr. Smillie's experience with horses. The supplemental TSA of February 1, 2000, suggested that Mr. Smillie could work in the agricultural manager and farm supervisor areas.

In passing, I note that up to this point, Mr. Smillie continued to improve: Ms. Abbot, in her Progress Report of March 2, 2000, says he was walking outside up to five miles per day to maintain his fitness levels. Dr. Nahri also did not yet consider him unemployable: on April 12, 2000, according to her notes, she told Ms. Abbot that State Farm should rehabilitate him for sedentary work with flexibility for movement. However, on April 17, Ms. Abbot reported that Mr. Smillie did not want work hardening and was "actively involved in establishing self-employment and confirmed that this remains his vocational direction for the future." On July 11, 2000, Ms. Abbot reported that Dr. Nahri wanted State Farm to focus on supporting Mr. Smillie's involvement in self-employment, and Mr. Smillie was still discussing the horse business but needed financing.

The July 11, 2000 report has the first reference to Mr. Smillie's long-distance driving trial.

Mr. Smillie testified that in the summer of 2000 he accompanied a friend in a modern well-equipped truck to see if he could sit long enough for 24-hour team driving. However, after two hours at the wheel he could not continue and had to rest in the cab's bunk.

On September 20, 2000, Ms. Abbot reported that Mr. Smillie did not tolerate the long-distance driving trial and was "involved in negotiations regarding self-employment in thoroughbred business."

Ms. Abbot's involvement ended on December 1, 2000. With respect to an October 27, 2000 meeting with Mr. Smillie, she wrote that Mr. Smillie hoped to attend a Kentucky horse auction in November and did not plan to consider alternative employment. State Farm agreed to fund some computer training to assist him in preparing for self-employment and, according to the report, Mr. Smillie confirmed that he had declined all aspects of vocational rehabilitation.

Having set out the background, I will now turn to the suitability of a return to the horse trade as an alternative occupation for Mr. Smillie.

Mr. Smillie submitted that he went back to his strength, horse breeding, but he needed financing that despite some promises was never forthcoming. However, Mr. Smillie's argument does not address the issue of whether he was physically incapable of returning to that occupation. There is no evidence of incapacity and, as seen above, Mr. Smillie devoted considerable effort to pursuing horse breeding while refusing State Farm's proposals. I find that, having chosen this type of work, Mr. Smillie cannot then rely upon his inability to secure employment in this area because that inability has nothing to do with his injuries.

Furthermore, I find that Mr. Smillie purposely limited his choices for finding alternative occupations. In Henriques,¹⁴ the Director stated: "An insured person cannot decide to forego reasonable training and then rely indefinitely on the need for training to support his or her ongoing entitlement." In Wilson,¹⁵ the Applicant was not entitled to benefits because he moved away from suitable work to a farm. The Director continued in Henriques, after mentioning the Wilson case: "In each case, the insured person made choices that limited his willingness to pursue suitable employment options." I find that analogous to what happened here.

State Farm submitted that in fact Mr. Smillie had identified a suitable occupation in seeking to return to the horse trade, and the fact that he could not find funding does not entitle him to benefits. I find that is correct in these circumstances where Mr. Smillie intentionally limited his pursuit of other occupations.

I will now consider the other jobs he identified.

Long-Distance Trucking

Mr. Smillie submitted that this was a failed work trial of a suitable alternative career, that even the Insurer in the person of Ms. Jody Abbot, the kinesiologist, identified this as a "work trial," and that therefore he has met his onus.

However, I find that Ms. Abbot's support of the proposed "work trial" was highly conditional. First, according to her report of July 11, 2000, even Mr. Smillie was "concerned with his tolerances to sitting for long periods" but thought that with team driving he would be able to move around as needed. Second, Ms. Abbot went on to use phrases such as "[i]f Mr. Smillie is successful with his run" and "if this is a job within Mr. Smillie's tolerances." She advised Mr. Smillie that "if this work trial was unsuccessful" then upon his return they would seek employment within his transferable skills, and under her rehabilitation plan she wrote that "[i]f Mr. Smillie is not successful in tolerating this work trial the expectations will increase regarding his involvement in seeking employment [within] his transferable skills and documented physical and functional activities."

I find that Ms. Abbot was not endorsing Mr. Smillie's plans. This is logical, since Mr. Smillie could not drive for long periods without exacerbation: In September 1999, Ms. Fox (the physiotherapist) reported that Mr. Smillie was able to drive a half hour without exacerbation, and in January 2000 she reported that he tolerated one hour of driving before he suffered an aggravation of his back symptoms.¹⁶ I find that Ms. Abbot doubted Mr. Smillie could tolerate this "work trial," considering his tolerances.

Mr. Smillie relies on the Terry case,¹⁷ another post-104 week case, to suggest that this was a reasonable work trial for Mr. Smillie. In Terry, Arbitrator Palmer found that Mr. Terry "convincingly demonstrated in his attempt at a work trial that he is completely unable to engage in a sedentary job" for which he was reasonably suited. However, I find the cases distinguishable. In Terry, the Applicant had been involved in a heavy pre-accident job, whereas the work trial was for a sedentary position at which "Mr. Terry made a concerted, genuine attempt to return to the workforce in a position that was modified in many ways to attempt to accommodate his impairments." [p7] Here, Mr. Smillie had been a driver and was attempting a job that was more physically demanding in terms of driving; his furthest trips had generally involved no more than two hours of driving. In that light, I find that this was not a reasonable work trial for an alternative occupation within the meaning of Terry.

Military Vehicle Paint Shop

Mr. Smillie testified that he made another job search attempt in 2001 when he applied for a job spray painting military vehicles. He went to the shop with a resume and met the personnel manager. At the manager's request, Mr. Smillie obtained and dropped off a printout of his driving record because the manager thought the AZ license would be useful. Mr. Smillie waited a week, called, then called again over the next couple of months, but eventually realized they were not hiring him.

I find that this evidence does not help Mr. Smillie meet the onus because it does not indicate whether the job was suitable for him or whether he was physically incapable of doing it.

Job Search Before the Hearing

Mr. Smillie searched for jobs suggested by State Farm's vocational expert, Ms. Knutson. For context, I will provide some details of the evidence of Ms. Morris and Ms. Knutson, the vocational experts.

In October 2001, at the behest of Mr. Smillie's counsel, Ms. Beth Morris, rehabilitation consultant, sought and received funding from State Farm "to assist Mr. Smillie in pursuing employment in the occupations suggested by the [Disability] DAC." She proposed meeting with him to review his background, conducting a labour market survey, assisting him with resume preparation and job search skills and "then monitoring his progress with his job search" (she did not perform the last). After meeting Mr. Smillie, Ms. Morris prepared a status report dated November 29, 2001. She considered him competitively unemployable, but she suggested he complete grade 12 through a self-study program and, if he wished to work as a retail sales clerk despite his reported disinterest, he could receive cash register training.

Ms. Susan Knutson testified that she was hired by State Farm to conduct a Transferable Skills Analysis based on the documents on file, including the reports of Ms. Morris,¹⁸ and to prepare labour market information. In her reports of November 12 and 22, 2002, she set out positions she thought Mr. Smillie capable of, such as Courier and Messengers, Delivery Drivers, Shippers & Receivers and Dispatchers, and listed specific job postings in the London Free Press.

Mr. Smillie submitted that his job search just before the hearing was part of his bona fide effort to identify, try to find or attempt some sort of suitable employment. Thus, his explanation for his search for jobs listed by Ms. Knutson was: "I thought maybe I had been wrong, maybe I am employable, so I went out to try and get a job."

However, I do not give much credence to Mr. Smillie's explanation, as he had indications much earlier of possibly suitable jobs and yet he did not start a job search then. For instance, the TSA by Disability Management Associates of October 27, 1999 had identified occupations similar to those Ms. Knutson identified. Similarly, the Disability DAC had concluded that Mr. Smillie could work in retail sales. When asked specifically what it was about Ms. Knutson's report that drove him to look for such jobs just before the hearing, I find that he became unresponsive, simply repeating that he is not a salesman: when asked if he picked doing nothing over doing sales, he answered "Yes."

That last answer pointed to another problem with Mr. Smillie’s job search: his attitude. He said he was hoping to be - and would be happy to be - proved wrong in his conclusion that he will remain unemployed.

I find that this job search does not assist Mr. Smillie in meeting the onus on him to show that he made a bona fide effort to identify, try to find or attempt some sort of "suitable" employment because of its timing and his attitude towards it. I find it more likely that the impending hearing inspired Mr. Smillie’s job search.

Having failed to meet this onus, Mr. Smillie must adduce strong medical evidence to make out a prima facie case for his total disability beyond 104 weeks.

Case for Total Disability Beyond 104 Weeks

Because this is a chronic pain case, Mr. Smillie's credibility is extremely important. It is even more so in this case because of the unusual course of Mr. Smillie's recovery. I will set out that recovery up to and after the 104-week period.

The Course of Mr. Smillie's Recovery to 104 Weeks

I will first set out more of Mr. Smillie's evidence about the accident.

Mr. Smillie testified that the accident occurred on January 6, 1999. The dispatcher had asked him to assist an out-of-town driver in Lambeth (a London suburb) for cash. He worked three or four hours. By the time he left, it had started to snow, and between Lambeth and south London his truck skidded sideways into the opposite lane, where an oncoming truck pierced the cab through the passenger door. The impact thrust the other truck back over its frame. Mr. Smillie's truck was almost horseshoe shaped, and a metal ladle that had been on the cab's floor was curved from its buckling. The next day, he found his glasses that had flown off in the impact in the air intake (the "breather") of the other truck.

Mr. Smillie testified that he got out of the truck, feeling "ripped in half": the seat belt marks on his torso lasted over a month. However, Mr. Smillie did not ask to go to the hospital, thinking that he was just badly shaken up, so a friend took him home. He thought he would recover quickly and return to work. However, during the night he was "in agony" from the spasms in his neck and back.

On January 11, 1999, Mr. Smillie complained to Dr. Nahri of severe back pain as well as some neck pain. He also had some tingling down his arms and occasional numbness in his face. Dr. Nahri ordered X-rays, which showed pre-existing degenerative changes in his spine. I discuss below her note of February 1, 1999, where she writes about discussing the X-rays with Mr. Smillie.

As noted above, State Farm hired Ms. Fox to assist Mr. Smillie. Mr. Smillie testified that Ms. Fox's various treatments included aquatherapy, guidance on using a treadmill, and weight lifting. She prepared a home exercise program that he still follows for his back and neck, including about 15 minutes of sit-ups, stretches on his hands and knees, and neck rotations. He also walks his dog six blocks to the nearby park — although lately on "bad days" he takes his dog there in his truck instead and only walks in the park itself.

Ms. Fox arranged massage therapy for Mr. Smillie at Health Network Registered Massage Therapy by Ms. Anne Cooper through July 12, 1999. He testified that the therapy provided temporary relief. The massage therapist's summary report of June 11, 2002, indicates that during the treatment period Mr. Smillie "noted a significant decrease in muscular spasm frequency and intensity" and that pain and discomfort had decreased, "although significant discomfort was still present intermittently in the lumbar and shoulder regions."

Mr. Smillie started returning to normal activities. For instance, in a reiteration letter to Dr. Nahri of May 18, 1999, Ms. Korsmit (the occupational therapist at Rehability) wrote that Dr. Nahri had "released Mr. Smillie to return to his previous activities of daily living." Dr. Nahri testified that she merely recognized he has to cope with routine activities like shopping and buying gas.

The massage therapist's notes show pain after some of these activities of daily living. For instance, on May 10, 1999, Mr. Smillie reported that after driving all day for a family outing his low back and right leg were "just killing him." However, a week later he did not have a back spasm despite the fact he "did lots of gardening." On May 26, he had "spasmed out in upper back last night [left] side." On June 2, he reported attending a party "and was dancing and spasmed out," leaving his back sore. On June 14, he reported a spasm after helping a friend move. Two days later he reported pain after gardening all day. On June 21, he reported that after cutting the hedge in the garden with his arms flexed to about 90 degrees he felt something "snap" and then was in pain for the rest of the day.

During the course of 1999, Ms. Fox recorded Mr. Smillie's status. By June, she reported that despite occasional exacerbations he was not limited in walking tolerance. By September, she found no limitations in walking or standing, and Mr. Smillie drove a half hour without exacerbation. He had a considerable improvement in his day-to-day symptoms but lifting exacerbated his low back pain. Dr. Nahri testified that this optimistic assessment is not the case now. Similarly, in a report on May 24, 2002 to Mr. Smillie's counsel, she referred to "the fifteen minutes standing time the patient has been noted to tolerate," which contrasts with the unlimited standing Ms. Fox noted already by September 1999.

In late 1999, Ms. Fox ended her treatment of Mr. Smillie by setting up a community-based exercise program at California Fitness and Health Spa. Ms. Fox's notes of January 20, 2000 show she attended there with him to provide strength and cardiovascular training. Mr. Smillie testified that while Ms. Fox was showing him one machine, she put too much weight on his legs causing him "excruciating pain" in his back, and he was in agony by the time he got home. He was also disappointed that the facility had no decent pool, so he never went back. In her last note of February 2, 2000, Ms. Fox noted that subjectively Mr. Smillie showed "significant flare up [with] min[imal] strength training, feels like back to 'square 1', to see chiropractor Wednesday." Mr. Smillie only went twice to that chiropractor, Dr. Scott Stewart.

In her final evaluation report of January 24, 2000, Ms. Fox noted that Mr. Smillie reported his "neck does not present ongoing problems [emphasis added] i.e. he has no further left hand radicular symptoms or facial paraesthesia. He reports no significant cervical pain and minimal residual cervical spine stiffness." Mr. Smillie agreed with the report but testified his neck is now much worse. Ms. Fox added that Mr. Smillie had one episode of right leg radicular pain after a half hour of snow shoveling, and his lumbar region was constantly stiff. He walked two miles on the treadmill, sat 1.5 hours for a hockey game with shifting after prolonged sitting, and drove one hour before aggravating his back. Mr. Smillie testified that he cannot walk the dog as often to the park as before and cannot sit as long as he could then. His lack of sleep and pain reduced his tolerance for standing as well.

With respect to the sleep problems, after the FCE at the Canadian Back Institute ("CBI") in December 1999, the CBI stated that Mr. Smillie reported "his sleep is occasionally disturbed by back pain following a period of physical activity." In contrast, Mr. Smillie testified that since the accident he has had no more than four hours of non-continuous sleep a night, as he only sleeps for two or so hours and then gets up. However, Dr. Barry Deathe, physiatrist, reported in a Med/Rehab DAC of September 2002, discussed below, that Mr. Smillie told him his back spasms "can come and go now and occasionally he can sleep 5 hours instead of his usual 4 hours." Dr. Nahri also testified that his sleep has improved to five hours.

With respect to walking, Mr. Smillie testified that although the CBI and Ms. Abbot said his walking was unlimited, now he can only walk a half hour. However, I note that the surveillance tapes from July 2002 show him walking longer than that with relative ease.

I find that by mid-summer 2000 there is no record of deterioration. Indeed, one doctor thought Mr. Smillie could continue to improve: Dr. A.T. Apostol, orthopaedic specialist, saw Mr. Smillie on August 18, 2000, on referral from Dr. Nahri. All he recommended for Mr. Smillie was "a few weeks of progressive spine muscle specific strengthening exercises to improve his strength and endurance. Once this is achieved, the symptoms that he is experiencing should improve."

Another doctor thought he had plateaued: on September 28, 2000, Mr. Smillie was first seen by Dr. David C. Taylor, orthopaedic specialist, for an insurer’s examination. Dr. Taylor noted that Mr. Smillie's symptoms had plateaued, with pain mainly in the lower back with only occasional radiation to the buttock and thigh. He had lesser complaints of neck pain with only occasional symptoms of paraesthesia in the left hand ring and little fingers, and his left-sided facial numbness had completely resolved. Dr. Taylor thought Mr. Smillie could work at the occupations listed in the TSAs. As noted below, Dr. Taylor saw Mr. Smillie a second time when his condition had apparently worsened, although the physical exam showed no change.

I find very little evidence supporting total disability at the 104 week mark. I find that Mr. Smillie was continuing to improve or had at least stabilized up to and immediately after the 104 week mark. Mr. Smillie was still continuing to seek employment in his former occupation, which I find shows that he did not consider himself totally disabled. I find there is no evidence at that point of the kind of constant shifting of position that Mr. Smillie later showed. Therefore, any finding of total disability has to rely on his subsequent deterioration.

Deterioration After 104 Weeks

Before Dr. Taylor saw Mr. Smillie again, the Disability DAC assessed him in July 2001, as noted above. The team consisted of Dr. Barry Deathe, physiatrist, Dr. Trevor Smith, psychologist, and Mr. David Ure, occupational therapist. By this point Mr. Smillie had developed his habit of constant shifting: In the Psychological assessment report, Dr. Smith noted Mr. Smillie's constant fidgeting, shifting and neck rubbing and wrote: "Unless he can sit and maintain static posture for longer than was observed during the psychological assessment, one cannot imagine anyone even thinking of employing him." This was repeated in the Executive Summary: "We also note in terms of employability that this man's inability to sit for very long may present negatively during employment interviews." Dr. Smith also noted Mr. Smillie's above-average IQ, which was probably even higher, but lowered due to discomfort. He found no psychological or psychosocial factors that precluded Mr. Smillie's employment, noted his "many very positive personal qualities," and listed seven possible occupations.

Mr. Ure, who conducted the FCE, also noted Mr. Smillie's fidgeting, moving while standing, and constant pacing. His tolerance for weighted tasks was limited and decreased with repetition; he was able to lift weights, but had a low activity tolerance. Mr. Smillie did show a mildly increased sitting tolerance when he was distracted by activity that required greater attention like paper tasks, though he continued shifting/rocking in the chair.

On February 21, 2002, Dr. Taylor wrote his second report after seeing Mr. Smillie again. Dr. Taylor noted Mr. Smillie's change in demeanour with increased fidgeting since the first report, although the physical examinations in both were identical. Dr. Taylor testified that on the first visit, Mr. Smillie sat comfortably in the office with no undue amount of perceived pain. On the second, Mr. Smillie alternated position frequently, rubbed at his lower back, and expressed more pain. He also complained of more neck pain. Dr. Taylor concluded that Mr. Smillie was not at risk of causing further harm or injury by resuming physical activity. It was reasonable for him to avoid heavier lifting, continuous repetitive bending or twisting, or prolonged periods of standing or sitting without at least briefly alternating position to minimize the exacerbation of pain.

In late February 2002, Mr. Smillie's counsel obtained a medical legal report dated February 20, 2002, from Dr. Patrick J. Potter, physiatrist, who concluded that Mr. Smillie was unemployable. He also made a number of recommendations to improve Mr. Smillie's lifestyle (although he did not think they would return Mr. Smillie to competitive employment):

• 6 to 12 psychological sessions to learn about the emotional aspects of chronic pain and relaxation techniques for it and sleep disturbance;
• A transcutaneous electrical nerve stimulation (TENS) trial of 6 to 8 treatments;
• Facet block injections, especially in the L4-5 facets;
• Cervical traction in a home unit and with physiotherapy;
• Alternative exercise programme like yoga.

Dr. Potter learned only at the hearing that Dr. Nahri and Mr. Smillie followed none of his recommendations; he testified that it was their choice, just as the choice of an exercise program would be Mr. Smillie's.

Mr. Smillie testified that Dr. Nahri told him she did not think psychological treatment would assist. Dr. Nahri testified that she, like the DAC's Dr. Smith, diagnosed no depression and that she counseled Mr. Smillie, but if needed she would have referred him for more counseling. Dr. Potter testified that psychological counseling would help Mr. Smillie manage emotional issues.

Mr. Smillie and Dr. Nahri testified that a TENS trial in 2000 did not work. However, Dr. Potter reiterated that a TENS trial merited 6 to 8 treatments, as they are often more effective later on.

Mr. Smillie testified that he did not want facet block injections, having seen horses receive them. Dr. Nahri testified that facet joint injections provide only very temporary relief, are refused by about half of patients, and may affect joint integrity. Dr. Potter noted that people do feel uncomfortable about injections.

Dr. Potter testified that a trial of cervical traction would be worthwhile, and Mr. Smillie testified that he would have tried it if Dr. Nahri had so recommended.

Dr. Deathe also considered Dr. Potter's recommendations because he re-assessed Mr. Smillie in a Med/Rehab DAC¹⁹ to consider Mr. Smillie's chiropractic treatment plan with Dr. Byron Atchison. In the Executive Summary dated September 11, 2002, Dr. Deathe pointed out "that Dr. Potter's recommendations are appropriate and should be, in my opinion, supported. . . . These recommendations are not absolutely mandatory, but I would commend Dr. Nahri consider them."

However, neither he nor Dr. Nahri followed the recommendations of the specialists he saw.

Mr. Smillie testified that he went for more chiropractic treatments with Dr. Atchison in January 2002. By this point Mr. Smillie had already mediated the income replacement benefit issue with the Insurer. State Farm initially approved Dr. Atchison's first treatment plan, but refused a further one. While waiting for the Med/Rehab DAC on that plan, Dr. Atchison continued treating Mr. Smillie. As with the massage therapist's notes from three years earlier, Dr. Atchison's notes contain several references to low back pain and spasm after mowing the lawn, walking the dog, or carrying out other activities. In the end, the Med/Rehab DAC approved the treatment plan through to its completion — which was September 13, 2002.

Dr. Ian Judge, chiropractor, carried out the chiropractic assessment of the Med/Rehab DAC. Dr. Judge thought that progress beyond the treatment plan "would best be achieved by an active exercise program and not passive therapies" and concluded that any treatment beyond the plan "would not appreciably alter his function or change the outcome of his condition."

Having set out the course of Mr. Smillie's recovery from his soft tissue injuries, I will now discuss why it is unusual.

Recovery from Soft Tissue Injuries

Dr. Nahri testified that she finds most of her whiplash patients do not recover from a soft tissue injury like a simple whiplash. The experts testified that most do: Dr. Clifford testified that on average only 20 percent of soft tissue injury victims continue to complain of pain.²⁰ Dr. Potter testified that the natural history of recovery is improvement with periodic exacerbations, and after a year only 15 percent still have ongoing pain or limitations.

I prefer their evidence over that of Dr. Nahri on this point. As Dr. Nahri herself noted, most doctors do not report findings like hers, and the experts on physical medicine disagreed with her. I also find her to be somewhat of an advocate for Mr. Smillie, as shown for instance in her reaction to the Disability DAC in her note of July 30, 2001: "Obviously very biased, as paid [for] by State Farm."²¹ Before me, she only grudgingly agreed that Mr. Smillie had shown initial improvement after the accident, and her letter to Mr. Smillie's counsel depicted a constant decline, even though Mr. Smillie himself testified to his initial improvement.

Accordingly, I find that Mr. Smillie's failure to recover already makes his case unusual. The evidence shows his subsequent deterioration makes his case even more so.

Dr. Potter testified that people often experience consistency of pain but variance in its day-to-day effects depending on their activity: pain may increase with gardening or decrease with massage. However, he also testified that someone not seeking hospital treatment after an accident would likely have a better recovery than someone complaining of severe pain at the scene. Further, soft tissue injury would be the less common risk than pre-existing degenerative changes for ongoing low back pain. Finally, it would also be rarer for somebody to improve as much as Mr. Smillie had within a few months of the accident and then to deteriorate to the levels Dr. Potter saw.

Dr. Taylor, who unlike Dr. Potter had seen Mr. Smillie before and after the deterioration, testified that in his experience Mr. Smillie's soft tissue injury alone would not explain the deterioration, but it was potentially explainable from the degeneration in his back or from weight gain. Dr. Taylor had noted a 13 pound weight gain in his second exam of Mr. Smillie. He testified that if you do less but eat the same, the resulting weight gain aggravates mechanical back pain and "not always but probably to a certain extent" aggravates soft tissue injury. Accordingly, it was "potentially true" that the weight gain, although "not catastrophic" but significant, in part explained his worsening in symptoms. Dr. Clifford testified that in his experience he has not seen pain increase consistently with weight. I find that even if there is a potential link between the weight gain and the back deterioration, it is a weak one that does not fully explain the back deterioration and it does not explain the neck deterioration.²²

Accordingly, I find that Mr. Smillie's subsequent deterioration makes his case even more unusual. This makes the assessment of Mr. Smillie's credibility even more crucial than in most chronic pain cases. With respect to chronic pain cases, Arbitrator Manji in Caruso²³ noted that the question always is "how much pain is too much pain": thus, is the pain preventing Mr. Smillie from doing a suitable job, considered as a whole, including reasonable hours and productivity? But with respect to self-reported limitations, which is all one can rely on in chronic pain cases, Arbitrator Manji in Caruso noted the evidence that the applicant was not as disabled as she said she was. For the reasons discussed next, I find that the same applies in this case.

Credibility

Various factors affect Mr. Smillie's credibility. Although a number of assessors thought he was straightforward, others found inconsistencies. His memory was selectively vague, and he even misinformed some people. Finally, surveillance shows that he changed his behaviour when he knew or suspected he was being observed.

One measure of credibility is what others have thought of Mr. Smillie. Assessors have commented positively about Mr. Smillie. For instance, the CBI noted in December 1999 that Mr. Smillie exhibited no signs of exaggeration and gave a consistent performance with maximal effort. However, the CBI also stated that Mr. Smillie did "report that his sleep is occasionally disturbed by back pain following a period of physical activity," which contradicts his testimony of not having more than four hours sleep since the accident, and Dr. Nahri's evidence that he can now sleep for five hours.

Similarly, the FCE at the Disability DAC noted that Mr. Smillie showed full physical effort with no observed clinical inconsistencies. He was "not observed to demonstrate cogwheel muscular displays, which are indicative of symptom exaggeration." However, a few months later, when Dr. Taylor saw Mr. Smillie for the second time, he noted "some cogwheel giving away in both upper extremities on motor testing."

Dr. Taylor also noted a number of non-organic findings with pain-focused behaviour that were not present during the previous examination: "He perceives himself as being significantly disabled. He mentioned today that he had been advised by one of his therapists that he would never work again."

State Farm submitted that Mr. Smillie's presentation is an exaggeration. It pointed to the conclusions of Dr. Judge, the chiropractor for the Med/Rehab DAC carried out in August and September 2002.

In his report under Clinical Impression, Dr. Judge noted Mr. Smillie's fidgety manner, but although he frequently stood, sat and changed positions he did not appear to Dr. Judge to be in acute distress, and the neurological exam was normal. Dr. Judge saw pain focused behaviour and some symptom magnification: "He rated a 70% on his neck pain questionnaire indicating a crippling disability and 84% on his low back pain questionnaire indicating bedbound or exaggerating." The "large degree of inconsistency . . . did not help to clarify his condition." Although Dr. Potter testified he did not see the inconsistencies Dr. Judge observed, he agreed Dr. Judge had "difficulty in identifying what is present." I find that, considering the fluid neck movements Mr. Smillie shows on surveillance even in 2002, and the fact that he is clearly not bedridden, Mr. Smillie's responses do suggest exaggeration. At the least, I find that these reports legitimately raise questions about Mr. Smillie's credibility in relation to the alleged deterioration.

State Farm submitted that Mr. Smillie's evidence was often vague and asked: What did he do on the side and what did he earn doing it? Mr. Smillie testified that he earned about $1,000 a year extra, but he told Ms. Morris it was $10,000, and the same amount was set out on his Application for Arbitration. State Farm submitted that the exchange between counsel and Mr. Smillie on the amount earned on the side showed his otherwise excellent concentration. In my notes, counsel for State Farm was asking him about his average salary over the previous years, noting that on average it was in the low $20,000s, to which Mr. Smillie replied that he was supplementing his income with cash deals:

Q. But you said you hardly did it and you gave no number?

A. It wasn't a case that I brought in X dollars every week.

Q. You said regarding moving that it was only 7, 8 months you worked with AMJ?

A. Right.

Q. I'm talking about 2 years before the accident. Were there other days with cash deals?

A. Yes, somebody out of province to pick up a shipment in the area, if it was a weekend or whatever, the boss or dispatcher would recommend a top mover to help this person, and they'd pay cash.

Q. So how much did you make doing that?

A. Maybe $5 to $10,000.

Q. Over what time period?

A. I'm not sure of the exact amount or the period.

Q. About $1,000 a year?

A. A little more than that.

Q. Money you were supposed to report to Revenue Canada that you didn't report?

A. Right.

Q. So whatever figures I have here I should add $1,000 to, is that fair?

A. If you choose to.

Q. Well, what's your answer?

A. Honestly, I can't say exactly how much. I might get a cash job with $200 or $250 and then go a month to the next one or get 3 in a month. The day of the accident, when I helped this guy, he laid $60 on me. If I'd known that I'd have stayed home.

Q. So a little over a $1,000 a year, so it should be $23 to $25,000 and not $22 to $24,000?

A. OK.

Q. So still dealing with couriers, this is consistent with the level of income you earned? A. Yes.²⁴

State Farm also referred to the following exchange about Canada Pension Plan benefits to show how Mr. Smillie answered questions to impress:

Q. You applied for CPP benefits in 2001?

A. Yes. And they wondered why I had not applied in 1999. And I said it was because I thought I would return to work.

Q. But they turned you down?

A. Yes. But when I applied they asked me why I did not ask in 1999.

State Farm submitted that even when pressed on the point Mr. Smillie did not give very much information on what he did after the horse trade business closed other than carrying on a meagre existence working in his father-in-law's liquor store or doing favours for friends, leaving a gap of about three years.

I find that Mr. Smillie remembered many things with great detail - except for that gap. For instance, in describing his long-distance trial, he testified that his friend had a 2000 Kenworth state-of-the-art tractor costing $140,000, with a walk-in standup cab, two bunks, refrigerator, microwave, and fully adjustable seats costing $2,500. In addition, he listed without hesitation his attempts at finding a job just before the hearing. He also remembered in detail the doctors he had seen, what the DACs said, and how he disputed what they said, such as his sleep problems.

As for Mr. Smillie's memory of events from almost 20 years ago, I will paraphrase some of his testimony:

In 1984, we purchased a mare in February for $115,000, and that year her colt was the second-top three year old and sold for 1.2 million. The proceeds went into the bank. She had a foal that next year in Saratoga that brought $265,000. We had a 1.5 million line of credit with a bank in Kentucky. In 1985 we got another horse — not all our horses were so top — and we eventually got about 30 horses. Five or six were racing. Anyway, that spring we got her and her yearling daughter for $120,000. That spring her three-year-old colt won a Derby. Sold her for $900,000. In 1985, August, I was in Saratoga and sold a yearling for $265,000, and won some races with one of our few racehorses.

I find that Mr. Smillie showed an excellent memory for events that occurred both 20 years ago and 20 days before the hearing. I therefore find the gaps in Mr. Smillie's recall inexplicable other than as an example of selective memory.

Mr. Smillie was also selective in what he told other people. Mr. Smillie was selective in what he told Ms. Morris, as on page 5 of her status report she relates that he told her he had great success in the horse business until it collapsed, he repaid the debt by selling the horses, and then returned to Canada in 1991. Ms. Morris testified that Mr. Smillie had not told her that he had worked in a liquor store for his then father-in-law or that he had done various favours for friends like managing a barn. She suggested that sometimes clients are "fuzzy" on dates, but I find that unlikely in Mr. Smillie’s case, given his otherwise excellent memory.

Mr. Smillie told a number of people that he had grade 12: the assessor for the supplemental TSA; Dr. Clifford and Dr. Taylor; and Mr. Smillie testified that "maybe" he had to say he had grade 12 to get the moving company job.

I note that Mr. Smillie also worked in the United States without the appropriate permits and, as set out in the testimony I have repeated above, he earned income that he did not report.

It is in the light of these contradictions that I will now turn to the surveillance. I find two main points arise from the surveillance. First, despite his evidence to the contrary, I find that Mr. Smillie appeared to be worse when he knew he was being watched. Second, I find that the surveillance at other times does not support his evidence that he was deteriorating.

Mr. Smillie was observed in March 2000, and also in March, May, July and November 2002. The most crucial tapes are those of May and July 2002; the May tapes were taken when Mr. Smillie was aware of the earlier tapes and was aware he was being watched; the July tapes show him being active and engaged in activities that belie his alleged deterioration.

Mr. Smillie agreed that he looks a lot healthier on the old videos than he does now: as for the first tape of March 2000, Mr. Smillie agreed that he was not limping much, although he was slightly bent over; as for the second tape two years later on March 8, 2002, he agreed he was walking better then than later that year.

By the time of the May 2002 tape, Mr. Smillie agreed that he "might have been" aware of the two earlier tapes and that he believed he was also aware of the investigators when they observed him. What the investigators noted in their report of the May 13 and 14, 2002 tapes was read to him:

Our investigator observed that the claimant is very suspicious of any motor vehicle in the vicinity of his residence. The claimant would closely examine any parked motor vehicle near his home while traveling to and from his residence in his motor vehicle. The claimant was observed to stop beside our investigator's motor vehicle in an attempt to ascertain who was inside. The claimant also appeared to change his walking stature when no motor vehicles were in his view and our investigator was on foot in the park making observations of him.

In my observations of the tape, Mr. Smillie is leaning to the side more than he did earlier. When asked if on May 13 his limp was markedly worse, he noted that the next day he was better, as he has good and bad days; that was the only day he saw himself sitting down and rocking. When it was pointed out that the investigator reported he walked differently on May 14 (the "walk in the park" discussed below) when he thought that the investigator had left, Mr. Smillie denied it.

Mr. Smillie submitted that the experts considered his presentation in the surveillance was consistent with chronic pain. He submitted that Dr. Clifford expressed that point of view. However, Dr. Clifford's comment about consistency in his report of November 13, 2002, related only to the fact that after stooping over his car's engine for some time, Mr. Smillie then stood up and limped for a few minutes: "This presentation would be quite consistent with that of mechanical back pain which is generally aggravated by prolonged positioning (e.g. bending or stooping) and then resolves with increased activity." Instead, Dr. Clifford notes the tapes of May 13 and 14, 2002 show significant pain behaviours, whereas on July 5 and 6, 2002, Mr. Smillie "demonstrated a wider range of activities" where "[f]or the most part, movements were normal." I agree with those observations.

State Farm submitted there was a temporal connection between Mr. Smillie's deterioration and his entry into the litigation process and that the surveillance contradicts the deterioration.

I find that the surveillance contradicts Mr. Smillie's alleged neck deterioration. Although Dr. Deathe in the Med/Rehab DAC report of September 11, 2002 was satisfied that in four videos Mr. Smillie's presentation matched what he told Dr. Deathe, in relation to the neck he wrote: "The only variance I found was that he was able in some of the videos to move his neck fluently and rapidly when backing up the car."

Similarly, Dr. Taylor had only seen the videos through March 2002, which reinforced his opinion that Mr. Smillie has chronic low back pain. He nonetheless noted that Mr. Smillie "entered and exited his vehicle with ease," "was able to rotate his neck with apparent ease when checking traffic before entering the street," his gait while walking was "fluid without hesitation," and flexed forward at the waist without hesitation to place blue box materials. Significantly, Dr. Taylor does not note any particular difference between the March 2000 and the March 2002 tapes, even though they are two years apart and the second was after Mr. Smillie’s alleged deterioration.

I find that the observations of the doctors agree with my own regarding Mr. Smillie's neck movements. I find that the free neck movements in 2000 and in 2002 are very similar, except of course for the days in May 2002 when Mr. Smillie was aware he was being observed. I find that the surveillance does not support Mr. Smillie's allegations of deterioration in his neck.

Furthermore, I am also troubled by the variance in demeanour shown by Mr. Smillie on the tapes. Although Dr. Potter and Dr. Clifford disagreed on the question of variance, Dr. Clifford testified that the videos of May 2002 showed too much difference from the other videos to be simple variance. From my review of the tapes, I tend to agree with Dr. Clifford. My view is reinforced when the tapes are viewed in the context provided by the investigators reports, especially in relation to the "beer episode" described below, which involved back movements.

In that regard, State Farm submitted that Mr. Smillie was worse when he was being watched. The first specific example State Farm pointed to was the walk in the park in May 2002. According to the surveillance report, around 10 a.m. on May 14, 2002, Mr. Smillie had driven his pickup truck up and down several streets checking for parked motor vehicles and had pulled up beside the investigator's vehicle apparently to see if anybody was inside. Mr. Smillie was then observed in the park near his home walking with a limp and then sitting in apparent pain on a bench. The investigator then left in his vehicle but returned on foot. Mr. Smillie can then be seen walking with a normal pace accompanied by his dog back to his truck before returning to his house.

The second incident was the "beer episode" on July 6, 2002, when Mr. Smillie was observed in various activities from about 10 a.m. to 2:30 p.m. Mr. Smillie testified that on that day he purchased a case of beer and put it in the truck, but when he got home his back bothered him, so he left it in the truck while he iced his back. (The tape shows Mr. Smillie lifting the case of 24 over the side railing of the truck to place it in the truck bed.) He later retrieved the beer, which happened to be six minutes after one of the investigators left. He denied knowing that he was being watched.

The investigation report notes that two investigators had been at the house, one in a van and one in a car. The report states that at 12:46 p.m., Mr. Smillie, on approaching the house after making his beer purchase, stopped beside one vehicle on the wrong side of the road and tried to look inside; he then slowly reversed his truck into the driveway, leaving the beer in the back of the truck (the beer is visible on the tape). At 1:10 p.m., the van drove off because the investigators thought Mr. Smillie would then believe the surveillance was over. Six minutes later Mr. Smillie walked around the front of his property, then went to the side of his truck and, after scanning the roadways left and right with his head, reached over the side railing to hoist up the case of 24 to carry it inside. My viewing of the tape shows that the report is accurate.

Mr. Smillie testified that it was "crap" that he only got the beer after the van left; he would not have left the beer out on a hot day if his back was not hurting and he "didn't care if it was ice cream sitting there."

However, I find a clear change in demeanour that day depending on whether Mr. Smillie appears to be aware that he is being observed. I do not find it mere coincidence that Mr. Smillie left the beer in the truck just to ice his back. Furthermore, after retrieving the beer, Mr. Smillie carried on to Canadian Tire to purchase antifreeze; I find he made an unlikely recovery.

I find that the combination of the days in May 2002 when Mr. Smillie appears to be so much worse than at other times, the recovery at the end of the walk in the park in May, and in particular the changes in demeanour around the beer episode in July, mean that Mr. Smillie changed his apparent level of function when he believed he was being observed. I find that he exaggerated his disability. I also find that the surveillance contradicts the alleged deterioration of his back.

I find that the combination of inconsistencies, exaggerations and disinformation in Mr. Smillie's evidence and his change of demeanour in the surveillance severely undermine his credibility. Since credibility is crucial in proving a chronic pain case, especially the rare case like Mr. Smillie's where the Applicant showed an initial improvement and then a deterioration, I find that the lack of credibility means Mr. Smillie has failed to prove a prima facie case of total disability. I find that therefore Mr. Smillie is not entitled to further IRBs.

I will briefly consider the alternative occupations, in case Mr. Smillie has shown a prima facie case of total disability. However, I do not consider that even in that case State Farm should have a great burden, considering the gap in the details about Mr. Smillie's work background. I find that Mr. Smillie has not provided satisfactory information either to State Farm or in his testimony about the three years before his return to Canada in 1991. A knowledge of what Mr. Smillie did is vital in determining what skills he learned that could be applied elsewhere. Nonetheless, I am satisfied that State Farm identified suitable alternative occupations.

Alternative Occupations

As noted above, the Disability DAC identified "NOC 0641 Protective Services Manager" and "NOC 6411 Retail Sales" as suitable alternative jobs for Mr. Smillie, within his limitations. The Retail Sales NOC code appears to have been a clerical error in the DAC's Executive Summary, since NOC 6421 is "Retail Salespersons and Sales Clerks"; NOC 6411 is "Sales Representatives - Wholesale Trade (Non-Technical)." Since Mr. David Ure, occupational therapist, considered both NOC 6411 and 6421 in his Functional Capacity Evaluation and determined that Mr. Smillie could perform either job if allowed to change position as required, I find that the DAC concluded a retail sales position would be suitable for Mr. Smillie. However, Mr. Ure also considered that Mr. Smillie did not meet the body position requirements for NOC 0641 (which he called "Commissioned Police Officer"). It is not clear from the DAC report why NOC 0641 was considered nonetheless acceptable. Accordingly, I will only consider the retail sales position.

Mr. Smillie relies on the Terry case,²⁵ another post-104 week case, to dispute the DAC. As in this case, Mr. Terry reported increased pain upon increased activity. He was supported by his family doctor and other medical specialists. However, I find that some of Arbitrator Palmer's criticism of the Disability DAC in that case do not apply here. She criticized the lack of a physiatrist on the DAC team; the lead evaluator in this case was Dr. Barry Deathe, a physiatrist. She criticized the FAE as only measuring an abstract level of function; in this case, Mr. Ure carried out an FCE that related body position, limb coordination and strength requirements to the suggested positions. She criticized the lack of conclusions in the individual reports and the lack of a team discussion; in this case, the individual reports did reach conclusions and there was a team discussion. She criticized the lack of discussion of what pain would be "too much"; Mr. Ure did discuss Mr. Smillie's levels of pain and the limitations they created in finding alternative occupations. However, the two DACs do have in common a lack of discussion about the meaning of the "complete inability" test. I nonetheless find the DAC valid because it contains a reasonable discussion of the important points.

Mr. Smillie submitted that the DAC team lacked a person with Ms. Morris's expertise and that she made a realistic assessment of Mr. Smillie's ability to do jobs in the real world with a real employer, unlike the DAC. That criticism likely places too great a burden on the DAC. The Insurer is not required to literally go out and find a job for an applicant. Similarly, a person with Ms. Morris’s expertise may consider whether or not there are actual openings in a profession at a given time or whether a suitable job is actually available, but that is not the test; there need only be an actual job, although it must not be a merely notional one.²⁶

I will now consider Ms. Morris's criticisms of the DAC.

Ms. Morris noted that Mr. Smillie was not interested in retail sales. As noted above, Mr. Smillie testified that he would rather do nothing than do sales. However, State Farm submitted that is not reasonable according to the criteria in Spicer²⁷ One of the principles espoused in Spicer is that the range of alternative employment may include reasonably suitable or appropriate jobs different from what the applicant had previously performed; jobs substantially different in nature, status or remuneration may not be appropriate alternatives. I find that, although Mr. Smillie may not like the thought of retail sales, that is not the issue absent psychological harm²⁸; after all, he did not particularly like moving either.

Ms. Morris noted that most sales jobs require a high school diploma. However, as noted above, Mr. Smillie was able to get a job as a mover despite a similar requirement. Considering the number of people he has told he has grade 12 and his demonstrated ability to find a job requiring grade 12, I do not consider this criticism valid either.

Ms. Morris referred to the comment by Dr. Smith at the Disability DAC that Mr. Smillie’s constant fidgeting, shifting and neck rubbing made it difficult to "imagine anyone even thinking of employing him." However, Dr. Smith still thought that Mr. Smillie would be able to work. I find that Dr. Smith's comments relate to how Mr. Smillie would present at an interview. I have already found that his presentation is an exaggeration. However, even if it is not, the issue is whether Mr. Smillie can do the job and not how well he interviews for it.

Ms. Morris noted that many such jobs require experience with a cash register. I have some skepticism that Mr. Smillie worked in his ex father-in-law's liquor store without learning to work a cash register. In any event, I did not find Ms. Morris's evidence about the difficulty of learning a cash register very convincing. I agree with State Farm's submission that it was incredible Ms. Morris did not know what was involved in cash register training, even though she emphasized that as a roadblock to Mr. Smillie twice in her evidence-in-chief. By way of contrast, Ms. Knutson testified that one Goodwill course lasts about four weeks and can help challenged people improve their chances; she thought most vocational people in the London area would know that. Considering Mr. Smillie's reluctance to engage in any alternative career training during the two years after the accident and his demonstrated intelligence, I do not consider the lack of cash register training (if, in fact, Mr. Smillie is unfamiliar with cash registers) to be a barrier to him.

Furthermore, not all retail sales jobs involve cash registers. State Farm submitted that a car salesman does not have to use a cash register and can get up and down and walk around. It submitted that Mr. Smillie's ability to convince a chiropractor to invest hundreds of thousands of dollars in him showed the extent of his salesmanship. State Farm submitted that, contrary to Mr. Smillie's assertion he is not a people person, he was personable and affable in giving his evidence. I formed the same impression.

State Farm submitted that considering how Mr. Smillie liked to go to flea markets and auctions he could do well at something like car sales. It pointed to the exchange about the trucks at the time of the accident: Mr. Smillie testified that his glasses were found in the "breather" of the motor of the other driver's truck. I asked what that was, and Mr. Smillie explained that it is the air intake on top of the motor. He went on to describe how the two major steel frames that the other truck was built on protruded out of the front of his truck, spearing into the side of Mr. Smillie's truck: "So the force of the accident had shoved the front of his truck back over the frame of mine." I find that this exchange shows a considerable depth of knowledge about trucks: Mr. Smillie knew what part of the motor a "breather" is and he knew how trucks are constructed. I find that Mr. Smillie has demonstrated a certain amount of product knowledge, which answers another criticism raised by Ms. Morris.

Ms. Morris criticized the DAC because the sales positions would not approximate Mr. Smillie's pre-accident earnings. She wrote that the "most frequently paid wage is $9.79/hour on average." I calculate that roughly at $20,000 a year. State Farm submitted that this was not a case of an insurer asking a scientist of 30 years to be a waiter. Mr. Smillie had a history of reversals. He had not sold horses for 13 or 14 years by the time of the accident; he had been a mover for seven years but one of those years he only earned $2,200; he spent another three or four years in a "meagre existence." State Farm submitted that the tax returns do not show the history that Mr. Smillie alleges. In 1994 he made about $20,000 plus $2,500 in worker benefits. He earned $23,000 in 1995, but only made $2,200 in 1996 plus received $10,500 in employment insurance benefits. He made just over $18,000 in 1997 and in 1998 made the most ever, $27,572. He testified that he made a little over a $1,000 extra on top. The averages are $22,000 to $24,000, dragged down by 1996. State Farm submitted that this shows his income just before the accident was either temporary or at least not $38,500 annualized. He had started at Courtney's at the end of March, so even $27,500 prorated over a year is only $32,000. Remuneration is not governed by the four weeks before the accident, it is only one factor, and it is not determinative (Henriques). In light of Mr. Smillie's past history, I do not consider the sales position unsuitable merely because of the remuneration.

Ms. Morris testified that in considering alternative employment it is important to have an accurate employment history. Ms. Morris agreed that the information Mr. Smillie had not told her was important although not necessarily "crucial." I find in her responses to these and other questions Ms. Morris was acting more as an advocate, trying to find excuses for the gaps in what Mr. Smillie told her (such as when she noted the "fuzzy" memory of some people), or downplaying the importance of those gaps.

In conclusion, I find that Mr. Smillie has not given me an accurate picture of his disability or of his education, training or experience. I am not convinced that Mr. Smillie is as disabled as he says he is. He also did not fill in a gap in his experience, leaving me with an incomplete picture of his transferable skills from the jobs he did discuss. Since the burden is on Mr. Smillie to establish a prima facie case of disability under the post-104 week test, his case must fail. I also find that State Farm proposed a suitable alternative occupation and that Mr. Smillie's criticisms of it do not render it invalid. Accordingly, I find that Mr. Smillie is not entitled to income replacement benefits.

I make this finding despite Mr. Smillie's continued low back problems arising from the accident. For completeness, I will discuss the causation issue raised by State Farm.

Pre-accident Condition and Causation

The only physician who suggested a significant pre-accident history affecting Mr. Smillie’s current status is Dr. Clifford. In a note dated November 13, 2002, he reviewed the clinical notes and records of Dr. Nahri and the Workplace Safety and Insurance Board ("WSIB") and concluded that there were "pre-MVA musculoskeletal complaints (neck, mid-back, chest, back hands), which were undoubtedly contributing to ongoing post-MVA musculoskeletal complaints." However, Dr. Nahri disagreed that her records show a significant history of musculoskeletal complaints; she testified that Mr. Smillie saw her mainly for the complaints about the pain in his fingers and toes. (These complaints were work-related, since Mr. Smillie testified they ended once he stopped working.)

I find that neither Dr. Nahri's nor the WSIB records show a significant pre-accident history of musculoskeletal complaints other than for specific short-term events. The only neck pain referred to is "cervicothoracic strain" in September 1994 when, according to the WSIB records, Mr. Smillie twisted his back while lifting a freezer. The same record and one from July 1993 do refer to back pain, but again they relate to specific events. As for the chest pains referred to in Dr. Nahri's notes, they only arose when Mr. Smillie fell in November 1995 and May 1996. The only reference to back pain in Dr. Nahri's records is in January 1996, when Mr. Smillie was seen regarding his hands and back; Dr. Nahri testified that since she listed "hands" first, that was the primary diagnosis and the back was secondary. Regarding this entry, Mr. Smillie testified that some back pain was not out of ordinary in the moving industry; he had a hot shower after he worked and went to work the next day. Dr. Taylor confirmed that Mr. Smillie told him essentially the same thing.

The other document State Farm relied on to show a significant pre-accident history was the report of Dr. J. Pope, the rheumatologist who saw Mr. Smillie in June 1999 on referral from Dr. Nahri. Since the Insurer relied so strongly on the note, and since if it is accurate it changed Dr. Taylor's conclusion that the accident significantly contributed to Mr. Smillie's current condition, I will discuss it in some detail.

In her first line, Dr. Pope writes that Mr. Smillie "was referred with mechanical back and neck pain as well as some hand pain." (Dr. Taylor testified that in general the term "mechanical back pain" refers to pain arising from degenerative changes, as opposed to pain arising from soft tissue injury.) The date of referral is critical, since if he was referred to Dr. Pope before the accident, her note suggests either he did have significant musculoskeletal pain or there is a mistake in the history.

Dr. Nahri believed the referral had been made before the accident. Her note of February 18, 1997 is the only pre-accident one where she discussed Mr. Smillie seeing a specialist because of his finger and toe pain. Mr. Smillie indicated to her at that time that work prevented his seeing a specialist. The next reference is post-accident: on February 1, 1999, Dr. Nahri discussed Mr. Smillie's post-accident X-rays with him. She wrote: "Wants to see a rheumatologist. Discussed." I find that they would not have needed to discuss seeing a rheumatologist if Dr. Nahri had already made the referral to Dr. Pope. Accordingly, I find that, logically, she made the referral after the accident. The rest of Dr. Pope's note then makes more sense.

In her note, Dr. Pope wrote that Mr. Smillie had an accident where he hurt his neck and only developed severe back pain during a subsequent work hardening. However, Dr. Taylor described Dr. Pope as having misunderstood, as Dr. Nahri's note of January 11, 1999 clearly referred to severe back pain.

Mr. Smillie did have some pre-existing symptoms. Dr. Pope referred to the operation for a right shoulder dislocation when Mr. Smillie was 15. She then wrote that about two and a half years earlier Mr. Smillie "noticed pain in his joints, hands, knees and back." The joint and hand problems are known and are not the issue now. Unfortunately for his overall credibility, Mr. Smillie testified that he did not have any knee problems before the accident. Ms. Cooper, the massage therapist, made a note "[bilateral] knees and [right] ankle sore for him from pre-existing injury" at her first assessment on February 17, 1999. In a subsequent report of June 11, 2002, the massage therapist at Health Network wrote that Mr. Smillie's antalgic gait re-aggravated "pre-existing bilateral knee, and right ankle injuries." However, on June 1, 2001, Dr. Nahri noted that Mr. Smillie had orthotics, and Dr. Potter testified that the orthotics for the knee pain had been effective and that the knee pain is not a "major problem" now.

That leaves the back pain. I will quote the passage from Dr. Pope's June 24, 1999, report on which the Insurer placed great weight:

About 22 years ago he noticed pain in his joints, hands, knees and back. It would be worse at the end of the day with only minimal morning stiffness. His discs were x-rayed and apparently were degenerative in the lower lumbar spine. He got progressively worse with more stiffness and pain. He started Arthrotec in the fall of 1997 and at that point in time he had 15 min. of morning stiffness. He was far worse at the end of the working day. He was hit from the side in an M.V.A. on January 6, 1999. His hands have improved since stopping work and neck has improved with the whiplash or C-spine trauma that he sustained at the time. As mentioned above, he then had the severe mechanical back pain that could have been a disc herniation or bulge that gave him a lot of pain a few weeks ago. He is improving now and there are no symptoms that would be concerning from a surgical perspective . . .

I find that the "It" at the beginning of the second sentence does not necessarily refer to Mr. Smillie's back. As with the references to "more stiffness and pain," the use of Arthrotec, and Mr. Smillie's being "far worse at the end of the working day," Dr. Pope could logically be referring to the hand and joint pain, which would be consistent with the records and the testimony of Mr. Smillie and Dr. Nahri. In the rest of the passage, Dr. Pope appears to deal in order first with the hand pain, noticing how it improved once he stopped working, then the recovery from the neck trauma, and finally the severe mechanical back pain that in her telling only arose after the accident. Accordingly, I find that the note does not show Mr. Smillie gave Dr. Pope a history of severe pre-accident back pain.

One other reference the Insurer relied on was Dr. Nahri's suggestion that Mr. Smillie may have had occasional back spasms before the accident. Mr. Smillie drew a distinction between his sore back at the end of a working day and the spasms he had after the accident. However, Dr. Nahri in making her comment was relying on the January 9, 1996 note, which makes no specific reference to back spasm. In this context, I do not find her comment significant.

Accordingly, I find that Dr. Clifford's assessment of a significant pre-accident history of low back pain incorrect. I prefer the opinion of Dr. Taylor. Dr. Taylor found that Mr. Smillie's complaints were attributable to both the soft tissue injury and to mechanical low back pain. Dr. Taylor testified that Mr. Smillie's major problem now is the mechanical low back pain. He might have had some of that pain regardless of the accident, but the history he had obtained did not show a clear antecedent history of significant low back pain.²⁹ Without that clear history, the accident more likely caused the mechanical low back pain.

Dr. Taylor concluded that at a minimum the accident was a significant factor in the low back pain Mr. Smillie has now. Based on the testimony of Dr. Taylor I find that the accident continues to make a significant contribution to Mr. Smillie's ongoing low back pain. Of course, despite this, and as noted above, Dr. Taylor felt that Mr. Smillie could still work.

EXPENSES:

The parties wished me to reserve on the question of expenses.

September 12, 2003

David J. Evans Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 136

FSCO A02-000039

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BRIAN C. SMILLIE

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Mr. Smillie is not entitled to income replacement benefits from January 17, 2001, pursuant to section 4 of the Schedule.

2. The parties may now speak to me on the issue of expenses.

September 12, 2003

David J. Evans Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
2. 2National Occupational Classification (NOC) codes consist of a four-digit number that can be used to break occupations into various occupational groupings. "Since its introduction in 1992, the National Occupational Classification system continues to be the authoritative resource on occupational information in Canada": http://www23.hrdc-drhc.gc.ca/2001/e/generic/welcome.shtml.
3. 3As discussed below, the NOC code appears to have been a clerical error in the DAC's Executive Summary, since NOC 6421 is "Retail Salespersons and Sales Clerks"; NOC 6411 is "Sales Representatives - Wholesale Trade (Non-Technical)."
4. 4Caruso and Guarantee Company of North America, (OIC A-006856, May 9, 1996). This decision dealt with s. 12(5)(b) of the predecessor legislation, the Statutory Accident Benefits Schedule — Accidents Before January 1, 1994, R.R.O. 1990, Reg. 672, as amended (the SABS-1994), which had a very similar test except for the additional requirement that the injury had to "continuously" prevent the insured from engaging in any suitable occupation.
5. 5Caruso; Howden and Pembridge Insurance Company (Pafco Ins. Co.), (FSCO A01-000333, October 16, 2002), under appeal
6. 6Howden
7. 7The psychologist at the post-104 Disability DAC found Mr. Smillie had an overall IQ into Above Average (110-119) and a verbal IQ of Superior (120-129), with a true level probably higher but lowered due to discomfort: Exhibit 1, Tab 12, page 14.
8. 8This comment appears to be leveled at the Disability DAC's proposed sales career.
9. 9Stakes Horse: A horse whose level of competition includes mostly stakes races. Stakes: A race for which the owner usually must pay a fee to run a horse. The fees can be for nominating, maintaining eligibility, entering and starting, to which the track adds more money to make up the total purse. Some stakes races are by invitation and require no payment or fee. From http://www.thehorsesatnorthlands.com/terms_s.html
10. 10Under Ontario's graduated driver's licensing system, a Class A driver's license is needed to drive a tractor trailer with a total gross weight in excess of 4,600 kg. Drivers of air brake equipped units must also obtain a special air brake ("Z") endorsement. From http://www.licensingoffice.com/DrivingLicence/Truck.html.
11. 11Ms. Beth Morris, the vocational specialist who testified for Mr. Smillie, wrote in her Vocational Rehabilitation Status Report of November 29, 2001, that "Mr. Smillie reportedly also earned approximately $10,000 per annum doing moves on the side and buying and selling antiques." The extra $10,000 also appears in his Application for Arbitration.
12. 12L.F. and State Farm Mutual Automobile Insurance Company, (FSCO A00-000364, August 21, 2002)
13. 13Initially of Disability Management Associates Inc., who later started her own business but continued reporting to State Farm about Mr. Smillie.
14. 14Henriques and Motor Vehicle Accident Claims Fund, (OIC Appeal P97-00002, August 28, 1997)
15. 15Wilson and Jevco Insurance Company, (OIC A-008409, January 13, 1995)
16. 16She also reported that he was able to sit 1.5 hours for a hockey game if he shifted position.
17. 17Terry and Wawanesa Mutual Insurance Company, (FSCO A00B000017, July 12, 2001)
18. 18Subsequently, on December 6, 2002, Ms. Morris prepared a critique of Ms. Knutson's reports.
19. 19The Med/Rehab DAC had the reports of Dr. Taylor and Dr. Potter, as well as a report of Dr. Nahri dated January 17, 2002.
20. 20Of course, Dr. Clifford argues that in the absence of pathology the tissues have healed and so people should get back to their previous level of function.
21. 21On August 12, 1999, Dr. Nahri made a note that Dr. Clifford's report "as expected" was siding on the part of the insurance company.
22. 22Furthermore, the weight gain is really under Mr. Smillie’s control, so he could ameliorate his pain - just as he likely could if he followed any of Dr. Potter's recommendations.
23. 23Caruso and Guarantee Company of North America, (OIC A-006856, May 9, 1996)
24. 24I do not have a transcript, so the conversation is recreated from my notes.
25. 25Terry and Wawanesa Mutual Insurance Company, (FSCO A00-000017, July 12, 2001)
26. 26Kennedy and Pilot Insurance Company (OIC A-012509, December 8, 1995); MacPherson and Pilot Insurance Company (OIC A-006195, June 30, 1995)
27. 27Spicer and State Farm Mutual Automobile Insurance Company, (OIC A-01058, May 24, 1995)
28. 28Attavar v Allstate 2003 CanLII 7430 (ON CA), 63 OR 3d 199 (2003) (CA): Insurer's proposed low-level clerking jobs would drive Plaintiff (future MBA) deeper into depression.
29. 29By "significant," he meant long periods off work; most people have occasional back pain, which matched Mr. Smillie's history.