Neutral Citation: 2004 ONFSCDRS 108

FSCO A02-001345

BETWEEN:

PHILLIPS G. MERRITT

Applicant

and

PEMBRIDGE INSURANCE COMPANY (Pafco Ins. Co.)

Insurer

REASONS FOR DECISION

Before:

Eban Bayefsky

Heard:

January 19 and 20, 2004, in Hamilton, Ontario.

Appearances:

Mr. Merritt represented himself

John Pavoni for Pembridge Insurance Company (Pafco Ins. Co.)

The Applicant, Phillips G. Merritt, was injured in a motor vehicle accident on May 3, 2000. He applied for and received statutory accident benefits from Pembridge Insurance Company (Pafco Ins. Co.) ("Pembridge"), payable under the Schedule.¹ Pembridge terminated weekly income replacement benefits on September 22, 2000. The parties were unable to resolve their disputes through mediation, and Mr. Merritt applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the commencement of the hearing, Mr. Merritt's counsel, Mr. James Scarfone, sought to withdraw as Mr. Memtt's representative. Mr. Scarfone stated that he and Mr. Merritt had prepared the case together and that they had mutually agreed that Mr. Merritt would proceed on his own. Mr. Merritt consented to Mr. Scarfone withdrawing as his representative and stated that he did not wish to seek other counsel. Mr. Merritt confirmed that he had discussed the matter with Mr. Scarfone and was fully prepared to proceed with the hearing on his own. The arbitration proceeded on this basis.

The issues in this hearing are:

Is Mr. Merritt entitled to income replacement benefits ("IRBs") from September 22, 2000, onward, at a rate of $196.98 per week, pursuant to section 4 of the Schedule?
Is Mr. Merritt entitled to a medical benefit for the cost of prescription medication, in the amount of $606.07, pursuant to section 14 of the Schedule?
Is Mr. Merritt entitled to a medical benefit for the cost of travelling to medical appointments, in the amount of $2,280, pursuant to section 14 of the Schedule?
Is Mr. Merritt entitled to interest on any outstanding benefits, pursuant to section 46(2) of the Schedule?
Is either Mr. Merritt or Pembridge entitled to their expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Mr. Merritt is entitled to income replacement benefits from September 22, 2000 to May 3, 2002.
Mr. Merritt is not entitled to a medical benefit for the cost of prescription medication.
Mr. Merritt is not entitled to a medical benefit for the cost of travelling to medical appointments.
Mr. Merritt is entitled to interest on the IRBs owing.
If required, the parties may now make submissions on the issue of expenses of the arbitration.

Background

Mr. Merritt was injured in a motor vehicle accident on May 3, 2000. He testified that he suffered back and neck pain, headaches and blurred vision immediately following the accident, and that these symptoms have gotten much worse since that time. He stated that he has suffered a wide variety of symptoms since the accident, including severe back pain and headaches, blurred vision, ringing in his ears, insomnia, loss of balance, weakness in his legs, arms and hands, loss of appetite, incontinence and memory loss. He stated that he also suffers from various infections due to the pain medication he has been prescribed.

Mr. Merritt has not attempted to return to work since the accident. He maintains that he has been unable to return to gainful employment as a result of the injuries he suffered in the accident. He feels that he could not do either his previous job as a hospital technician or any alternative work, due to severe pain, weakness, fatigue and memory and concentration problems. He said that he cannot sit or stand for any length of time. Mr. Merritt feels that he could perform consulting work in his previous position, as long as there were no lifting involved. However, he said that, because of his worsening pain, he would not be able to complete any reports required to be prepared in such a position.

(i) Pre-Accident Employment History

Mr. Merritt was not working at the time of the accident. His previous job was in the stores department at St. Joseph's Health Centre in London, Ontario, from October 1989 to approximately June 1999, where he was a sterilization technician and where he maintained patient supplies in the stores department. He worked part-time cleaning hospital equipment, taking inventory, stocking shelves and delivering supplies throughout the hospital. Working in the stores department was a physically demanding position, which involved lifting 40 lb. cases of bleach and loading 10 lb. cases of intravenous solution onto trolleys to deliver to the different floors of the hospital. Mr. Merritt explained that he stopped doing this job in April 1999 because of an allergic skin reaction which he felt was caused by exposure to latex products. He also felt that he had been exposed to asbestos at the hospital. He said that his employer did not re-assign him to a different job apparently because of a concern that he would suffer an anaphylactic shock if he stayed at the hospital. Mr. Merritt made workers' compensation claims in relation to these problems, but the Workplace Safety and Insurance Board ("WSIB") denied the claims.

Mr. Merritt also worked part-time as a funeral director from roughly June 1998 to December 1999 at his brother's funeral home, working one week out of every six weeks. He did embalming, preparation of the caskets, and cleaning of the funeral home, all of which involved physically demanding tasks. He stopped this job due to severe headaches potentially related to exposure to formaldehyde in the embalming process.

In a written statement taken May 30, 2000 by the adjuster, Mr. Merritt said that he had also worked for Golan Alarm in Toronto since April 2000 as a security consultant, selling alarm systems and security equipment door-to-door. Mr. Merritt testified that he was employed by and was working for Golan Alarm at the time of the accident, but had not yet been paid. He also testified that this was a "pending job...in the works" and had not been confirmed. He disputed a letter from Golan Alarm to the effect that he had only received two hours training for the job and had not begun work there.

Mr. Merritt testified that he had occasionally worked since 1995 as a male escort, but did not do this job after the accident. Finally, he said that, at the time of the accident, he was dropping off scrap metal at a junk yard for money, but that "this was not a job."

(ii) Pre-Accident Medical History

Mr. Merritt had a number of medical problems prior to the accident. He testified that he had suffered from psoriatic arthritis since 1985 which affected his hands, feet, legs and knees. Mr. Merritt's family doctor, Dr. A. Comley, records in his 1999 and 2000 clinical notes that Mr. Merritt had long suffered from significant joint pain and stiffness, and headaches. In February 1999, Dr. D. Bell, a rheumatologist, confirmed that Mr. Merritt suffered from psoriatic arthritis with the "worst areas for him [being] his right wrist, thumbs, the neck, the trochanteric area of both hips, the knees, particularly the right where there has been swelling but with less pain and in the MTP joints of the feet." Dr. Bell reported Mr. Merritt as having had morning stiffness and "problems with sleep because of disruption by pain and also previously working shift work."

Mr. Merritt fell and injured his left knee on March 30, 2000, requiring him to use a knee brace to walk. In April 2000, Dr. Comley reported that this injury limited Mr. Merritt's ability to participate in his usual daily activities. Specifically, Mr. Merritt was limited in both heavy and light lifting, walking, standing and driving.

Mr. Merritt suffered from significant headaches for at least a year prior to the accident. Mr. Merritt testified that between December 1999 and the May 2000 car accident, he was not working due to a "terrible onset of headaches." However, he also said that, compared to his post-accident headaches, his previous headaches were "like a cake walk." He made a workers' compensation claim in early 2000 in relation to headaches he suffered for a six-month period in 1996 and 1997 apparently as a result of exposure to formaldehyde at his brother's funeral home. Mr. Merritt testified that these headaches resurfaced in 2000 causing him to miss work from his principal job at the hospital. He said that St. Joseph's Health Centre invited him to return to work in January 2000, but that he could not return due to his headaches. He said that he also suffered headaches due to the stress of being laid off from the hospital. In February 2000, Mr. Merritt told the WSIB that he had ongoing chronic migraine headaches from July 1996 to January 1997, that he continued to work without lost time, and that the "headaches are still very much part of my life." In March 2000, Dr. Comley reported that Mr. Merritt continued to have headaches and "feels that he cannot do the work." Later that month, Dr. Comley reported that Mr. Merritt's headaches "cause him to have severe nausea...difficulty driving and difficulty] concentrating." In April 2000, Dr. R. Lo, a neurologist, reported Mr. Merritt as saying that he suffered from headaches and a mild stiff neck. Dr. Lo suspected that he had a "combination of muscular headaches as well as muscle migraine" and that "most of the mild headaches are muscular in nature which could be related to stress."

On May 1, 2000, Mr. Merritt told the WSIB that he had been off of work since March 2000 due to "his inability to concentrate, drive and work." He also said that his other claim regarding asbestos exposure "impacted upon his current employment status, work restrictions and financial difficulties."

On May 19, 2000, a WSIB investigator reported Mr. Merritt as saying that he had had frequent and severe headaches from July 1996 to January 1997, occasional headaches from January 1997 to February 2000, and then "constant headaches (everyday) but the severity fluctuates." At the hearing, Mr. Merritt testified that, since February 2000, he only sometimes had daily headaches. Mr. Merritt testified that, although his May 2000 car accident made his headaches worse, he did not mention the accident to the WSIB investigator because he never asked. However, Mr. Merritt also said that he probably did mention the accident, but that the investigator probably did not want to hear about it. Finally, he said that he did not recall whether he told the investigator this and that his long-term memory has not been good since the accident.

Mr. Merritt testified that he did not have neck or back pain before the accident. However, he said that he did go for "normal chiropractic adjustments" about once or twice a month for "general maintenance" and to deal with "tweaks" in his neck and back. Mr. Merritt also testified that he had at least mild pain and stiffness in his neck before the accident, and that he was not sure if he had low back pain before the accident. In November and December 1999, Dr. W. Buchanan, a rheumatologist, reported that Mr. Merritt had developed acute lower back pain. Dr. Buchanan reported that x-rays of Mr. Merritt's lumbar spine were "essentially normal, although there seem[ed] to be some disease at the level of the L5-S1." Mr. Merritt testified that he did not recall this or the reason for it, but was "not quarrelling with it." The clinical notes of Mr. Merritt's chiropractor, Dr. G. Gonchar, show that Mr. Merritt received treatment to his neck and low back twenty times between January 27, 1999 and April 12, 2000. In the initial assessment, Mr. Merritt reported that his major complaint was "cervical strains x 3 - stiffness, mild pain, bi-lateral shoulder stiffness" and that his other complaint was "thoracic stiffness." Mr. Merritt was also asked how long he had had this condition, to which Mr. Merritt responded that he had had two motor vehicle accidents in 1974 and 1977, with a compensable cervical compression accident at work in approximately 1983. He also reported that the condition was "constant." Dr. Gonchar diagnosed Mr. Merritt as suffering from a chronic vertebral subluxation complex.

Mr. Merritt had been injured in previous motor vehicle accidents. In August 2000, Dr. A. Sekyi-Otu, an orthopaedic surgeon, reported Mr. Merritt as saying that he had suffered whiplash-type injuries in two car accidents in 1996 and 1997, and was off for about a week each time. Mr. Merritt testified that these dates were incorrect, and that he had been in accidents in 1974 and 1977. An emergency record from Chedoke-McMaster Hospitals indicates that Mr. Merritt had been involved in a motor vehicle accident on September 14, 1996. No significant findings were noted. In a written statement taken May 30, 2000 by the adjuster, Mr. Merritt said that he had had "two rear-end collision accidents myself in 1977 and 1999." In the same statement, Mr. Merritt stated that he had suffered neck and back injuries in motor vehicle accidents in approximately 1975 and 1977. He stated that he had had neck pain and sleeping difficulties since those accidents. At the hearing, Mr. Merritt testified that he had not had a rear-end collision in 1999. However, an emergency record from St. Joseph's Health Centre indicates that Mr. Merritt had been in a motor vehicle collision on June 6, 1999. Mr. Merritt testified that he did not recall if he had been in an accident then. The emergency record is not clear as to whether Mr. Merritt suffered any significant problems as a result of this accident.

(iii) Post-Accident Medical History

On May 15, 2000 (twelve days following the motor vehicle accident), Dr. Comley reported that Mr. Merritt was experiencing headaches once a day, as opposed to three times per week previously. The headaches were also apparently "different and stronger." Dr. Comley noted limited range of motion in Mr. Merritt's cervical spine. Mr. Merritt complained of mild low back pain, but Dr. Comley reported that Mr. Merritt's lumbar/sacral spine was normal. Dr. Comley reported that Mr. Merritt had suffered a hyperextended neck and recommended physiotherapy. Roughly a month later, Dr. Comley reported that Mr. Merritt was complaining of increased neck pain and headaches, as well as low back pain, generalized weakness and dizziness.

On May 25, 2000, Dr. J. Turnbull, a neurologist, reported that Mr. Merritt's headaches persisted, with the "pattern now [being] two days with headache, then one or two days without headache." Dr. Turnbull reported that Mr. Merritt's headaches "have a migrainous quality to them" and that "there are multiple other factors, including poor sleep, and difficulty with frustration at being unemployed, and having to live with his parents [with whom there was some friction]."

In June 2000, Dr. Gonchar submitted a treatment plan with a diagnosis of "acute cervical WAD Grade III" with an estimated duration of disability from May 3 to August 15, 2000.

In July 2000, Ms. J. Sullivan, a registered massage therapist, reported Mr. Merritt as presenting with neck, right shoulder and upper back pain, and more severe headaches than previously accompanied by nausea "on a daily basis."

On July 19, 2000, Dr. F.C. Smith, the orthopaedic surgeon who had previously treated Mr. Merritt's left knee injury, reported that Mr. Merritt's "anterior cruciate ligament [was] not terribly stable and...[would likely] require a reconstruction."

In mid-August 2000, Dr. A. Sekyi-Otu reported as follows:

Clinically, it would appear that Mr. Merritt had suffered a Type II Whiplash Associated Disorder, with a lumbosacral strain.

Mr. Merritt's prognosis for complete resolution of his symptoms at this stage remains fair. Today I observed pain-focused behaviour, and functional overlay. There are several non-organic signs, which are not consistent with any presenting symptoms. Today I observed no objective findings to substantiate his level of disability.

It is my opinion that Mr. Merritt is not disabled from his pre-accident responsibilities at work as a store person, or as a funeral home worker from a musculoskeletal perspective. There may be a discrepancy between his perceived disability, and his actual functional capacity.

No further investigations are necessary from a musculoskeletal perspective, however further studies [may] focus on non-musculoskeletal sources of dysfunction or delay in return to his normal capabilities. A psychologist might be referred to further investigate his perceived dysfunction.

I would not recommend any further physiotherapy or chiropractic therapy, as Mr. Merritt reported a poor response by his own testimony.

On March 1, 2001, Dr. D. Kolios submitted a treatment plan for acupuncture, stating that Mr. Merritt suffered from a Grade II Whiplash Disorder, multiple joint dysfunction and functional overlay. Dr. Kolios also stated that Mr. Merritt was "not disabled but complained of difficulty performing ADL's [activities of daily living]" and suggested that Mr. Merritt be referred to a pain management clinic and/or a psychologist.

On March 22, 2001, Mr. Merritt underwent a medical and rehabilitation DAC assessment. Ms. L. Wiens, the evaluating physiotherapist, reported that the treatment Mr. Merritt had received to that point in time (specifically, Dr. Gonchar's October 2000 treatment plan) had been "reasonable in an attempt to treat Mr. Merritt's musculoskeletal complaints." However, Ms. Wiens reported that "further formalized treatment [would not] be beneficial in altering his long term presentation," but that Mr. Merritt might benefit from a multidisciplinary pain management program.

On June 10, 2001, a report presumed to be from either Dr. Comley or someone from his office indicated that Mr. Merritt suffered from the following conditions: 1) arthritis secondary to psoriasis, 2) headaches secondary to exposure from formaldehyde, 3) psoriasis, 4) neck and back pain following a motor vehicle accident and 5) left knee anterior cruciate ligament strain. Dr. Comley further reported as follows:

the motor vehicle accident is "giving [Mr. Merritt] several problems and he is undergoing chiropractic manipulations, massage therapy and other treatments;"
the "motor vehicle accident and the problems to his back muscles and neck have severely affected him"; he is "restricted with lifting and carrying out any activities because of the pain discomfort and muscular involvement;"
"because of all his problems with the trauma from the motor vehicle accident,...he has just been overwhelmed by these things and he is not able to function;"
Mr. Merritt "feels that he could not do any work"; "it would be very nice if he could get a job that would allow him work where he would be using his mental abilities rather than his physical abilities to get back on his feet."

On August 16, 2001, Dr. Lo reported that Mr. Merritt "likely has had chronic muscular tension headaches." Dr. Lo "suspected that most of the headache is fibromuscular in origin and may be related to stress."

On September 21, 2001, Dr. Comley reported that Mr. Merritt was disabled from work on the basis of his "headaches - from the work 40%" and "back prob[lem] from MVA 60%." Dr. Comley reported that Mr. Merritt was limited in walking, standing, sitting, lifting, bending, pushing and pulling.

In the written statement he gave to the adjuster, Mr. Merritt said that his pain had "increased since the [May 2000] accident (all over body pain, neck pain, back pain and headaches)," that the "accident aggravated [his] previous condition" and that he was "unbelievably sore, way more pain than [his] previous accidents."

Mr. Merritt underwent another medical and rehabilitation DAC assessment on June 24, 2003 to consider whether further chiropractic treatment by Dr. Gonchar was reasonable and necessary. The assessors concluded that it was not, essentially on the basis that previous treatments had provided minimal relief to Mr. Merritt. In reaching this conclusion, the assessors noted that Mr. Merritt had suffered soft tissue injuries in the May 2000 accident and was currently complaining of headaches, short-term memory loss, hand weakness and tingling sensations, facial numbness, a loss of balance, poor appetite, nausea, urgency of bowel and bladder, and chest pain. The assessing neurologist, Dr. K. Stoltz, reported that Mr. Merritt was "now three years post MVA and ha[d] developed a chronic pain syndrome, which is an aggravation of a pre-existing condition." Dr. Stoltz recommended (subject to the approval of Mr. Merritt's rheumatologist) that Mr. Merritt undergo an indefinite program of home exercise, consisting of "stretching for his neck, back and joints, and gentle cardiovascular exercise, such as walking."

Findings

Section 4(1) of the Schedule states, in part, that a person is entitled to income replacement benefits if, as a result of an accident, he or she suffers a substantial inability to perform the essential tasks of his or her pre-accident employment. Section 5(1) states, in part, that the person is not entitled to IRBs beyond 104 weeks of disability, unless, as a result of the accident, he or she suffers a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.

The parties agree that Mr. Merritt's entitlement to IRBs within the 104-week period ought to be determined in reference to his pre-accident employment at St. Joseph's hospital.

A number of arbitration decisions have considered the question of whether a person already disabled from working at the time of a motor vehicle accident can nevertheless be entitled to statutory accident benefits.² The governing principle appears to be that a person will be entitled to benefits if, despite or in light of a pre-existing disability, the accident materially contributed to the person's inability to return to work beyond the date benefits were terminated. I accept the principle laid down in McCormick³ that "the fact that an applicant is disabled from employment as a result of a preexisting condition does not prevent a finding that he is unable to work as a result of an automobile accident, within the meaning of [the Schedule]." I further note the case of Moschonissios⁴ which held that a person would only be disentitled to benefits if, because his or her pre-existing condition was so severe, the motor vehicle accident only had a minimal effect on his or her disability. An important consideration in this area is whether, had the accident not occurred, the person would likely have returned to work.

Mr. Merritt suffered from a variety of medical problems prior to the accident, the main ones being psoriatic arthritis and migraine headaches. He also had neck and back pain, as well as a knee injury. I find that, as a result of the accident, Mr. Merritt suffered a material worsening of his neck pain and subsequently developed chronic pain syndrome. I find, on a balance of probabilities, that Mr. Merritt's accident-related injuries materially contributed to his inability to return to his pre-accident employment.

Pembridge does not dispute that Mr. Merritt injured his neck in the accident. I find that the accident significantly aggravated Mr. Merritt's pre-existing neck pain. While Mr. Merritt reluctantly acknowledged that he had had neck pain prior to the accident, and while he had been in different accidents over the years, I find that he had only had mild neck pain prior to the May 2000 motor vehicle accident. Dr. Gonchar's clinical notes support Mr. Merritt's contention that, as of January 1999, he only received chiropractic adjustments to his neck on a maintenance basis. Dr. Gonchar's and Dr. Lo's pre-accident reports also indicate that Mr. Merritt had only suffered mild, though ongoing, neck pain and stiffness.

Both of the practitioners who had treated Mr. Merritt before the accident (Drs. Comley and Dr. Gonchar) reported that Mr. Merritt had suffered a significant whiplash injury as a result of the accident. Unlike his pre-accident treatment, Mr. Merritt underwent extensive chiropractic adjustments following the accident. The assessors in the 2001 medical and rehabilitation DAC, who were aware of Mr. Merritt's pre-existing headaches and chiropractic treatments, found that the treatment Mr. Merritt had received up to that point had been reasonable in attempting to treat his musculoskeletal complaints. In September 2001, Dr. Comley reported that Mr. Merritt continued to be severely restricted by his neck pain. Based on this evidence, I find that the accident significantly aggravated Mr. Merritt's pre-existing neck pain.

Mr. Merritt also complained of more severe headaches and significant back pain following the accident. I do not accept Mr. Merritt's claim that his headaches became significantly worse after the accident. However, as discussed more below, I find that his subjective complaints of more severe headaches must be viewed in the context of the significant non-organic component of his condition. The pre-accident reports of Drs. Comley, Lo and the WSIB establish that Mr. Merritt suffered chronic, debilitating headaches right up until the time of the accident. Mr. Merritt's own evidence is that between December 1999 and May 2000, he was not working due to a "terrible onset of headaches." The basis for his workers' compensation claim was that he could not concentrate, drive or work due to the severity of his headaches and related nausea. The 2003 DAC assessors reported Mr. Merritt as stating that he had suffered "chronic daily headaches at the time of the motor vehicle accident." I, therefore, accept the WSIB's May 2000 report of Mr. Merritt having complained of daily headaches since February 2000.

After the accident, Dr. Comley and Ms. Sullivan reported (in mid-May and July 2000, respectively), that Mr. Merritt had begun to suffer daily and more severe headaches. However, in the midst of these two examinations, Dr. Turnbull reported that Mr. Merritt's pattern of headaches was two days on and one or two days off. Ms. Sullivan also reported that Mr. Merritt's headaches were accompanied by nausea, something that he had experienced on a regular basis prior to the accident. I find significant Dr. Lo's pre- and post-accident reports to the effect that Mr. Merritt's headaches were muscular in nature and potentially related to stress. And despite being advised of the accident shortly after it happened, Dr. Turnbull also reported that Mr. Merritt's headaches were migrainous in nature, with various non-accident related contributors. Finally, in September 2001, Dr. Comley reported that Mr. Merritt was still disabled from work, in part, as a result of his work-related headaches. I, therefore, find that Mr. Merritt's pre-existing headaches had not been significantly aggravated by the accident.

Regarding Mr. Merritt's complaints of significant post-accident back pain, while he did not readily acknowledge his pre-existing back pain, I find that it was relatively minor compared to his post-accident symptoms. He only received occasional chiropractic adjustments to his lumbar spine. He only complained to Dr. Gonchar of "thoracic stiffness" and did not appear to receive any treatments in this area. He had an acute onset of low back pain in late 1999, but only went for x-rays (which were essentially normal), and did not undergo any additional chiropractic or other treatment at that time.

After the accident, Mr. Merritt complained to Dr. Comley of severe low back pain. However, Mr. Merritt did not appear to seek treatment for this problem. The physiotherapy treatment from May to July 2000 did not address Mr. Merritt's mid or low back. Mr. Merritt only underwent chiropractic treatment for the cervical spine (with possible attention to the thoracic spine beginning roughly two years later). Dr. Gonchar further assessed Mr. Merritt in July and September 2000, and reported normal lumbar findings, although Mr. Merritt was complaining of some mid back pain at these times. I find that these discrepancies must be viewed in the context of the significant non-organic and/or psychological aspect of Mr. Merritt's symptoms.

As early as three months post-accident, Dr. Sekyi-Otu commented on the absence of objective findings to support Mr. Merritt's subjective complaints and the possibility of Mr. Merritt obtaining psychological treatment regarding his perceived level of disability. Approximately six months later, Dr. Comley records Mr. Merritt as saying that "he would like to work but his health will not allow him to do so" and "he feels that this [is] all a result of the accident," but comments that Mr. Merritt was "not willing to look at the fact there is a major psychological component." At the same time, Dr. Kolios (the acupuncturist) and Ms. Wiens (the 2001 DAC assessor) suggested that Mr. Merritt obtain multidisciplinary pain management and/or psychological treatment. Most recently, in the 2003 medical and rehabilitation DAC, Dr. Stoltz reported Mr. Merritt as complaining of a wide variety of symptoms and found that he had developed a chronic pain syndrome as an aggravation of a pre-existing condition.

In September 2001, Dr. Comley reported that Mr. Merritt was disabled from returning to work at St. Joseph's hospital, in large part, because of his accident-related back problem. This essentially confirmed the views expressed in the June 2001 report from Dr. Comley's office. I find that Mr. Merritt's complaints of severe low back pain, like the severe headaches and "all over body pain" of which he complained, were a function of the significant non-organic and/or psychological component of his condition.

I, therefore, find that Mr. Merritt suffered a significant exacerbation of his pre-existing neck pain and subsequently developed chronic pain syndrome. At the time of the accident, Mr. Merritt felt he was limited in performing his job at either St. Joseph's hospital or his brother's funeral home. However, there is no evidence to the effect that he considered himself totally or permanently disabled from work. While Mr. Merritt had long suffered from headaches, he had continued to work at St. Joseph's hospital and at various funeral homes over the years (his brother's being the most recent). The WSIB records suggest that arrangements had been made for Mr. Merritt to return to work on three separate occasions in early 2000, but that he failed to do so because of car problems and a cold. While Mr. Merritt may not have co-operated fully at this time, I do not find that he would never have returned to his work at the hospital. There is nothing to suggest that his headaches or apparent reactions to latex and asbestos would permanently preclude him from returning to work.

In this context, I find that the motor vehicle accident significantly affected any attempt he may have made to return to employment. Conversely, as discussed in Moschonissios, I find that the accident had more than a minimal effect on Mr. Merritt's pre-existing disability. While he suffered from various problems prior to the accident, I find that the accident materially altered the nature and severity of his condition. Roughly three months post-accident, Dr. Sekyi-Otu reported that Mr. Merritt was not disabled from returning to work. Pembridge terminated IRBs on this basis. However, Dr. Sekyi-Otu acknowledged the non-organic component of Mr. Merritt's problems, and suggested that he be referred to a psychologist to assist him with his perceived disability. Dr. Kolios and Ms. Wiens made similar recommendations. Dr. Stoltz ultimately diagnosed chronic pain syndrome. None of the recommendations for a multi-disciplinary approach to Mr. Merritt's problems were implemented. Given the whiplash injury Mr. Merritt suffered in the accident, and Pembridge's acknowledgement of the reasonableness of treatment beyond the date IRBs were terminated, I accept Dr. Comley's opinion that the accident significantly altered and prolonged Mr. Merritt's inability to perform the physically demanding tasks of his previous employment.

Regarding Mr. Merritt's disability beyond the 104-week mark, I have very little, if any, evidence before me on the question of whether the accident precluded Mr. Merritt from engaging in suitable alternative employment. Arbitration decisions establish that the insured bears a significant onus on this issue.⁵ The closest statement in the evidence is that contained in the June 2001 from Dr. Comley's office in which the hope is expressed that Mr. Merritt would return to a job where he could use "his mental abilities rather than his physical abilities to get back on his feet." To the extent that I can rely on this report, the statement could either support or undermine Mr. Merritt's claim that he remains totally disabled. It could simply be a request for assistance on Mr. Merritt's behalf, or it could suggest that he is, in fact, capable of returning to some form of employment. Mr. Merritt, himself, has given two different messages as to his ability to return to work. On the one hand, he said that he is incapable of returning to any employment; on the other hand, he said that he might be able to do some consulting work (depending on the specific requirements of the position). While Mr. Merritt has significant problems, on the basis of the very limited information before me, I am not prepared to find that he suffers from a complete inability to engage in suitable employment.

I, therefore, conclude that Mr. Merritt is entitled to IRBs from September 22, 2000 to the 104-week mark, namely, May 3, 2002, with interest.

Mr. Merritt's entitlement to the cost of prescription medication and travel expenses

Mr. Merritt sought payment for approximately $600 in prescription medication. The medical records contain various references to Mr. Merritt's medications. However, it is unclear which pertain to his pre-accident problems and which were prescribed specifically for his accident-related complaints. It is also unclear as to which of the medications account for the $600 claimed by Mr. Merritt. The only specific evidence Mr. Merritt gave on this point was that he required Zomig, a migraine medication, as a result of the accident. However, he also said that Dr. Lo had prescribed this before the accident for his migraine headaches, although he apparently had not started to take it before the accident. Mr. Merritt also said that he took a wide variety of medications before the accident for his psoriatic arthritis. On the basis of the evidence before me, I do not find that the $600 medication expense sought by Mr. Merritt was reasonably required as a result of the accident.

Mr. Merritt sought reimbursement for travel expenses following the accident. He submitted that his brother had driven him approximately fifty times after the accident to medical appointments in other cities and that he had arranged to pay his brother $125-$135 for each trip. He maintained that he could not drive due to migraine and body pain. However, as noted above, Mr. Merritt told the WSIB that he had been off of work since March 2000 due to his "inability to concentrate, drive and work." He also said that he had previously paid his brother for driving him to medical appointments. There is no evidence that Mr. Merritt actually incurred any costs with respect to the transportation following the accident. On the basis of the evidence before me, I do not find that the travel expenses sought by Mr. Merritt were reasonably required as a result of the accident.

EXPENSES:

If required, the parties may now make submissions on the issue of expenses.

July 22, 2004

Eban Bayefsky Arbitrator

Date