Neutral Citation: 2004 ONFSCDRS 140

FSCO A03-000290

BETWEEN:

J. C.

Applicant

and

PROGRESSIVE CASUALTY INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Beth Allen

Heard: January 12, 13, 14 and 15, and April 5, 6, 7 and 8, 2004 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Stanley B. Pasternak for Mr. C. Pamela A. Brownlee for Progressive Casualty Insurance Company of Canada

Issues:

The Applicant, J.C., was injured in a motor vehicle accident on June 14, 1997. He applied for and received statutory accident benefits from Progressive Casualty Insurance Company of Canada ("Progressive"), payable under the Schedule.¹ Progressive terminated weekly income replacement benefits on November 19, 1997. The parties were unable to resolve their disputes through mediation and approximately four years after benefit termination, the Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, by an Application for Arbitration dated February 28, 2003.

The issues in this hearing are:

Does the Applicant suffer from an impairment sustained as a result of the accident pursuant to subsection 4(1), paragraph 1 of the Schedule?
Is the Applicant entitled to income replacement benefits pursuant to subsection 4(1), paragraph 1 of the Schedule from November 20, 1997 until June 14, 1999?
Is the Applicant entitled to income replacement benefits under subsection 5(2)(b) of the Schedule from June 15, 1999 onwards?
Is Progressive liable to pay a special award pursuant to subsection 282(10) of the Insurance Act?
Is the Applicant liable to pay Progressive's arbitration expenses pursuant to subsection 282(11) of the Insurance Act?
Is Progressive liable to pay the Applicant's expenses pursuant to subsection 282(11) of the Insurance Act?
Is the Applicant entitled to interest on overdue amounts pursuant to subsection 46(2) of the Schedule?

Result:

The Applicant sustained an impairment as a result of the accident pursuant to subsection 4(1), paragraph 1 of the Schedule.
The Applicant is entitled to income replacement benefits pursuant to subsection 4(1), paragraph 1 of the Schedule from November 20, 1997 to June 14, 1999 at the rate of $275.30 per week.
The Applicant is entitled to income replacement benefits pursuant to subsection 5(2)(b) of the Schedule from June 15, 1999 onwards at the rate of $275.30 per week.
Progressive is liable to pay a lump special award of $5,000 inclusive of interest, pursuant to subsection 282(10) of the Insurance Act.
The parties did not provide evidence or submissions on the expense issue. I encourage them to settle the issue and, failing that, they can approach the Commission for an assessment hearing.
Progressive shall pay interest on the overdue income replacement benefits from June 5, 2001, pursuant to subsection 46(2) of the Schedule.

EVIDENCE AND ANALYSIS:

The Accident and Early Medical Assessment

The Applicant was involved in a motor vehicle accident on the evening of Saturday, June 14, 1997, at a rural intersection about 15 miles east of Peterborough. At the time of the accident, the Applicant was living on his own in Cobourg, Ontario renting a room in a house. His mother resided in nearby Hastings, some 53 kilometres away. The Applicant's mother provided the evidence about the accident since the Applicant has no memory of it.

The Applicant's mother was driving a 1986 Dodge Daytona, with the Applicant, then 18 years of age, in the front passenger seat, and a friend of the Applicant in a rear seat. The Applicant's mother ran a stop sign while driving northbound. A pickup truck, travelling westbound, struck the front passenger side of the mother's car in a "T-bone" fashion, just ahead of the door where the Applicant was sitting. The Applicant's mother testified the impact of the pickup truck, which was travelling about 60 kilometres per hour, caused her car to spin several times and come to rest in the middle of the road. A photograph of the mother's car reveals substantial damage to the car in the described area of impact.

The mother testified that immediately after the collision, she turned to her son and observed that he appeared unconscious. He was slumped over, unresponsive and still in his seat belt. The front passenger side window was blown out and glass was everywhere. Ambulances arrived and transported the Applicant, his mother and the friend to Peterborough Civic Hospital. The Applicant's mother testified that she and the back seat passenger were more or less unhurt in the accident.

The mother stated that after waiting several hours in emergency at the hospital to be seen by a doctor, the Applicant decided he did not need treatment. He left the hospital with his mother. The following day, Sunday, June 15, 1997, the Applicant took himself to Northumberland Health Care Centre ("Northumberland") in Cobourg, Ontario. The medical records pertaining to that visit record complaints of superficial cuts to the right side of the Applicant's head, neck pain, dizziness and a sore left knee. The Applicant was assessed and released.

The next day, Monday, June 16, 1997, the Applicant went to work. According to the Applicant's and his mother's testimonies, the Applicant fell asleep in his boss's truck that day, where the boss's wife found him in a lethargic, disoriented state and, out of concern, drove him to Northumberland where he underwent a second assessment. The Applicant complained of nausea, dizziness, memory loss, headaches and confusion. The x-ray taken the day before revealed the Applicant had sustained a fractured skull, "a linear skull fracture through the temporal squama." On June 16, 1997, Northumberland became concerned about the Applicant's condition and transported him to Sunnybrook Women's College Hospital ("Sunnybrook") for a neurological assessment. The CT scan conducted was normal. The Applicant was released to his mother that day.

Also on June 16, 1997, the Applicant visited his family doctor, Dr. Faye MacDonald, who prepared a Disability Certificate (undated) which notes complaints of short-term memory loss, headaches, fatigue and dizziness. It appears from other dates on this document that the Certificate was prepared in July 1997. Dr. MacDonald diagnoses concussion and skull fracture over the right temporal bone. She indicates that the Applicant has had no prior similar conditions. She leaves blank the questions on the Certificate as to whether further investigations, consultations or visits are required. Dr. MacDonald forecasts that the Applicant's symptoms of short-term memory loss, headaches, fatigue and dizziness should resolve by about August 8, 1997.

A second Disability Certificate prepared in association with the Applicant's attendance with Dr. MacDonald on June 30, 1997, indicates that the Applicant has no impairment. Dr. MacDonald diagnoses a head injury with right temporal bone fracture and concussion and indicates there are no factors affecting recovery. Dr. MacDonald notes no further investigations, consultations or visits required.

Shortly after the accident, Progressive retained Northern Rehabilitation & Consulting Services Inc. ( "NRCS") to coordinate the Applicant's rehabilitation. NRCS received several medical opinions that pointed to improvement in the Applicant's medical condition.

NRCS sent Dr. MacDonald a reiteration letter dated July 8, 1997, signed back on July 10, 1997,

which summarizes the contents of a meeting between the NRCS nurse and Dr. MacDonald on June 30, 1997. This letter states in part:

You indicated that based on your recent examination on June 30, 1997, [Mr. C.] has [sic] is unable to complete his pre-accident school and employment duties. You based this on the following findings: decrease [sic] memory and inability to perform quick thinking and learning.

Your prognosis for functional restoration allowing [Mr. C.] to return to pre-injury essential duties is excellent. You stated that [Mr. C.] will not sustain any permanent injuries.

You plan to refer [Mr. C.] to a Neurologist, for medical follow up. At this time, you do not recommend treatment until the results of the consult with the Neurologist are known.

A second reiteration letter from NRCS to Dr. MacDonald, dated July 8, 1997, was signed back on September 21, 1997 and appears to be identical to the first letter.

The third reiteration letter from NRCS to Dr. MacDonald, dated September 26, 1997, which summarizes a September 24, 1997 telephone conversation between Dr. MacDonald and an NRCS rehabilitation consultant, was signed back on October 10, 1997 and states in part:

You stated that [Mr. C.] is able to return to his pre-accident essential duties, including school and employment. You indicated that [Mr. C.] was able to return to these activities as of mid August, 1997.

You do not anticipate any permanent limitations and no further treatments are recommended

Dr. MacDonald referred the Applicant to Dr. John Lan, a neurologist, who he saw on July 8, 1997. Dr. Lan's report, dated July 8, 1997, indicates that he assessed the Applicant in relation to his poor memory. Dr. Lan's report concludes:

There is no neurological abnormality indeed, with normal cranial nerve and visual field. He has no tremor or asterixis and no weakness of the limbs. Reflexes were present @ 2+ and symmetrical. There is no motor weakness or sensory loss. Gait, balance and limb coordination were normal.

This young man sustained a concussion and head injury with skull fracture over the right temporal bone, but fortunately there was no serious neurosurgical condition. The current complaints of short memory loss, headache, fatigue and for a short time, dizziness, are quite compatible with a closed head injury, but fortunately given his young age, I would expect him to recover completely. To complete his investigations, I will bring him back for an EEG in the near future. I would suspect that within a month or so, he should be able to resume his regular activities.

In its final report dated January 23, 1998, on behalf of Progressive, NRCS released the Applicant from NRCS services. The report indicates that on October 27, 1997, NRCS delivered to the Applicant assistive devices, protective gear and a day planner as recommended by an occupational therapist. Relying on Dr. MacDonald's opinion, NRCS concludes that the Applicant's rehabilitation goals have been met and that as of mid-August 1997, no medical barriers exist to prevent the Applicant resuming his pre-accident employment and school activities.

The Applicant's Pre-Accident Life

The Applicant's mother and brother testified about the Applicant's life before age 18. The mother testified that the family moved to different towns and residences a great deal throughout the Applicant's life. The mother and brother both described the Applicant as having had a normal boyhood. The Applicant was very active in a variety of sports - ball hockey, swimming, horseback riding, and wrestling. The Applicant and his mother also testified that the Applicant used to enjoy playing the guitar before the accident and had played in a band with his friends as a teenager. His mother testified that he undertook some part-time employment as a youth such as working on a golf course, assisting with farming chores, labour and factory work.

At the time of the accident, the Applicant was employed in a Futures Program, a co-op program he attended in connection with Sir Sanford Fleming College in Cobourg. A letter from Sir Sandford Fleming College dated September 19, 2002 states that the Applicant was employed with the Futures Program and was not involved with the school as a student. The Applicant's placement was at an automobile garage where he worked about 20 hours per week cleaning, rust proofing and detailing automobiles. He could provide no further details of the job. The Applicant claims that after the accident, he was no longer able to perform that work

Background to the Applicant's Claims

The Applicant filed an Application for Accident Benefits dated June 30, 1997 claiming entitlement to income replacement benefits. After the accident, the Applicant received income replacement benefits at the rate of $275.30 per week from June 21, 1997 to November 19, 1997. By a letter dated October 30, 1997, pursuant to subsection 37(3)(b) of the Schedule, Progressive notified the Applicant of his right to a designated assessment centre assessment of his disability (a "Disability DAC"). The Applicant did not request to be assessed by a Disability DAC and his income replacement benefits were terminated effective November 19, 1997.

Progressive did not raise a limitation defence based on the Applicant's failure to meet the limitation period provided under subsection 281(5) of the Insurance Act, which provision requires the insured person to commence an arbitration within two years of an insurer's refusal to pay the benefit claimed. The Applicant filed his Application for Arbitration some four years after benefit termination. In opening submissions, Progressive's counsel conceded that Progressive had not met the notice of benefit refusal requirements set out in the Supreme Court of Canada case, Smith v. Co-operators².

The Applicant submitted a further Application for Accident Benefits dated April 17, 2001 in which he also claims entitlement to income replacement benefits. In his Application for Arbitration dated February 28, 2003, the Applicant claims income replacement benefits under subsection 4(1), paragraph 1 of the Schedule up to the two-year point after the accident, on the basis that he suffers a substantial inability to perform the essential tasks of his pre-accident employment. He further claims ongoing income replacement benefits after the two-year point under subsection 5(2)(b) of the Schedule, on the basis that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. The Applicant also claims interest on any overdue amounts under subsection 46(2) of the Schedule, a special award under subsection 282(10) of the Insurance Act, and his expenses under subsection 282(11) of the Insurance Act.

Progressive also claims its arbitration expenses.

The Post-Accident Period

There is no dispute that the Applicant suffered impairments as a result of his June 14, 1997 accident. He was diagnosed with a head injury involving a fractured temporal bone and concussion, a variety of physical conditions and cognitive problems involving short-term memory loss, headaches, fatigue and dizziness. Progressive terminated the Applicant's accident benefits on November 19, 1997 and the Applicant did not connect with the medical system for accident - related medical complaints until he attended at The Wellesley Central/St. Michael's Hospital ("St. Michael's") in January 2000, some two years after benefit termination. I find under these circumstances, the Applicant's entitlement to income replacement benefits depends on a finding that the Applicant suffers or continued to suffer from (an) accident-related impairment(s) after benefit termination up to June 14, 1999, for the purposes of section 4 of the Schedule; and ongoing after the two-year period for the purposes of section 5.

The Applicant argues that the cognitive, psychological and physical problems he suffers from are impairments he sustained as a result of the June 14, 1997 accident. Progressive, on the other hand, argues that the Applicant's medical problems are not a result of the accident, but are a result of significant pre- and post-accident cognitive, psychological and physical conditions that, in its view, have not been shown by the Applicant to bear a connection to the accident.

The Applicant, his mother and brother testified at length about the Applicant's post-accident health during the period after the accident, before the Applicant approached St. Michael 's, and up to the present. The Applicant underwent a substantial number of medical assessments from 2000 to 2003 by various medical specialists and assessment facilities. Reports of these assessments, the medical-legal reports requested by the parties, and the medical and rehabilitation designated assessment centre ( "Med/Rehab DAC") assessment offer opinions as to whether the Applicant's psychological, cognitive and physical problems are impairments caused by the accident.

Testimonies of the Applicant, the Applicant's Mother and Brother

The Applicant, his mother and brother presented evidence, graphic in its detail, about the Applicant's circumstances following the accident, in the years before he reconnected with the medical system and up to the present.

The mother testified that Sunnybrook told her it would take months before his physical pain and cognitive and emotional problems would resolve. She stated, however, that his symptoms have never gone away. Her evidence and that of the Applicant and his brother is that since the accident and up to the present, the Applicant's head, neck, and back pain, dizziness, forgetfulness and emotional instability have not abated.

The mother testified that the Applicant's memory loss was displayed through his inability to recall how to play his guitar and card games he used to know before the accident. When he attempted to return to school in 1997, he could not write, comprehend reading and generally could not keep up with his work, so he left school after about two months. According to the Applicant's mother, the Applicant became unhappy, moody and cynical and would have temper flare ups.

The Applicant moved to Toronto in early 1998 to live with a sister. His brother, who testified at the hearing, and who also lived in the Toronto area, now saw the Applicant on a more regular basis. They eventually moved together into apartments in Toronto for a couple of years where the brother financially supported the Applicant.

The brother described the Applicant as being a very different person than the brother he knew before the accident. The Applicant, once an active roller blader, athlete, guitarist and part-time worker, became distant, withdrawn and slower, and as the brother described, "more mellow." The brother stated that the Applicant had difficulty communicating with him and that they both became very frustrated with the Applicant's condition. The Applicant used to walk at the same speed as the brother, but could not keep up after the accident. The Applicant complained that it hurt to lie down and to sit up. The brother testified that the Applicant did not work or go to school. He did nothing other than play video games and take his dog for walks. According to the brother, the Applicant does not socialize with friends or date because he is embarrassed about his condition. He sometimes visits his sister and mother. The brother described an incident where the Applicant and he were having a beer in a pub and the Applicant began sweating profusely, saw bursts of light, had hot flashes and could not see. An ambulance was called. After a while, the Applicant cooled down.

The brother has observed the Applicant's irregular sleep patterns and the fatigue he experiences on a daily basis, that limits his activity. He often has to take taxis to get around. The brother stated that the Applicant has difficulty doing housework and chores because of his pain, although he makes attempts at doing laundry and vacuuming.

The Applicant's memory of his life after the accident was sketchy in parts, but he described a life of daily physical pain involving headaches, left hip, and mid-back pain between his shoulder blades, and cognitive and emotional problems. He testified that nothing really relieves his pain. The Applicant described persistent bilateral blurry vision, nausea, dizziness, memory problems, problems reading, fatigue and sleep deprivation since the accident, which he did not experience pre-accident. He testified that his sleep is disturbed because of pain, and that medications do not help. He indicated that he sold his guitar after the accident because he could no longer play it and that he no longer plays any sports. He described an incident where he once tried to roller blade after the accident and fell and broke his collar bone. He stated that he threw his roller blades away after that.

The Applicant testified that on a daily basis he just sits around and watches video games and takes his dog, Mikita, for walks in the park. He stated that he sometimes visits family members but does not socialize with friends. The last time he had a girlfriend was a couple of years ago. The Applicant indicated that he has lost weight since the accident because he does not have the money to feed himself. He indicated that he spends a fair amount of time at home waiting for his dizziness and nausea to pass. He stated that for the past few years he has lived in a basement apartment below his mother in Toronto and that his mother is able to help him with cleaning his apartment, grocery shopping, and cooking and doing the dishes when he does not feel well.

Psychological, Neuropsychological, Neurological and Psychiatric Assessments

St. Michael's Hospital

The Applicant attended the crisis unit at St. Michael's on January 27, 2000, suffering from depression. The record indicates that the Applicant and his mother reported that he had emotional and physical problems after his June 14, 1997 accident and was depressed at the time of the hospital visit as a result of problems with his girlfriend. Dr. Coxon, a psychiatrist with St. Michael's, concerned about the Applicant's accident-related head injury and neuro-cognitive problems, referred the Applicant to a neuro-psychiatrist, Dr. Paul Sandor, at Toronto Western Hospital ("Toronto Western").

Toronto Western Hospital

Dr. Sandor saw the Applicant and his mother on March 2, 2000. The Applicant and his mother related to Dr. Sandor the circumstances of his June 14, 1997 automobile accident. They informed Dr. Sandor of the Applicant's accident-related skull fracture and brain swelling. According to Dr. Sandor's report, dated March 14, 2000, the Applicant complained of cognitive, physical and emotional problems which the Applicant told Dr. Sandor, resulted from the accident. Dr. Sandor's report notes cognitive problems, including impaired memory, communication and language problems, dizziness, blurred vision, sleeplessness; feelings like drunkenness; physical problems such as pain, numbness and tingling in his thoracic spine, legs, neck and head; and emotional and psychological problems with depression.

Dr. Sandor concluded that the Applicant presented with the classic symptoms of post concussion syndrome with chronic pain. Both conditions, Dr. Sandor states, relate to the Applicant's motor vehicle accident of three or four years ago. Dr. Sandor referred the Applicant to the following investigations: a sleep study; an ophthalmology assessment (at Toronto Western); an orthopaedic assessment; a neurological assessment; a neuropsychological assessment (with Dr. Mary Pat McAndrews); and to a head injury specialist assessment (with Dr. Chanth Seyone, psychiatrist).

On March 8 and 9, 2000, the Applicant underwent an overnight sleep study by a physiatrist and a sleep technician at Toronto Western to investigate possible post traumatic stress disorder and fibromyalgia. The study revealed depression-related chronic pain with a sleep disorder. The Applicant attended the ophthalmology assessment at Toronto Western recommended by Dr. Sandor on July 5, 2002, with Dr. William G. Macrae, who did not find any conditions that could be accident related.

In a letter to Dr. Sandor dated July 28, 2000, Dr. McAndrews indicates that the Applicant failed to attend scheduled appointments for neuropsychological assessments with her on June 8, 2000 and July 26, 2000. The Applicant was ultimately assessed by Dr. McAndrews on August 3 and 9, 2000 based on the Applicant's self-report of his accident, his psychological, emotional and physical complaints, and the results of neuropsychological testing. Dr. McAndrews found that the Applicant did not perform to the best of his ability and concluded that she could not provide a valid interpretation of the test data. She pointed out, however, that this does not mean that there is no impairment.

The Toronto Western records reveal that the Applicant attended Dr. Seyone on July 31, 2000, but Dr. Seyone was unable to complete the assessment in August and September 2000 because the Applicant failed to attend subsequent appointments

Acquired Brain Injury Assessment by the Toronto Rehabilitation Institute

Dr. Jeffrey Brown, the Applicant's family doctor until about April 2001, referred the Applicant to the Toronto Rehabilitation Institute ( "TRI "), a facility that deals with acquired brain injuries, where he was admitted as an outpatient on July 18, 2001 and discharged to home on September 5, 2001. The initial report noted that the CT scans conducted on June 16, 1997 at Northumberland and on March 28, 2000 at Toronto Western, and the SPECT scan conducted on October 19, 2000 at Sunnybrook were interpreted to be normal. The initial investigation by Dr. Mark Bayley, a physiatrist, focussed on the Applicant's chronic pain, emotional and cognitive complaints arising from the head injury sustained in his June 14, 1997 motor vehicle accident.

In its discharge report, TRI concluded that the Applicant suffered from no gross sensory disturbances nor neurologically from any gross motor or sensory abnormalities. TRI concluded that the Applicant suffered from chronic pain and post concussion syndrome, pointing to the dizziness, mood lability and forgetfulness as symptoms of this. Because of his chronic pain problems (which is not TRI's specialty), TRI recommended a functionally-based home treatment program using the rehabilitation services of the Toronto Community Care Access Centre ( "CCAC"), rather than TRI's formal cognitive therapy program.

Cognitive-Behavioural Assessment by the Toronto Community Care Access Centre

The Applicant was involved with the CCAC program from October 2001 until June 2002.

A social worker, Ms. Judy Weinryb, a psychologist, Dr. Jessica Cooperman, and a behaviour consultant, Ms. Lisa Lariviere, were assigned to work with the Applicant. A psychological assessment by Dr. Cooperman and Dr. Bruce A. Linder, psychologists with Pryor, Linder and Associates, was conducted on October 11, 2001 and concluded that the Applicant should undergo memory, relaxation and cognitive-behavioural training.

From October 11, 2001 until March 2002, the Applicant attended a number of meetings with Dr. Cooperman to deal with memory enhancement strategies and school upgrading. Dr. Cooperman states in her note of March 21, 2002, the Applicant failed to participate appropriately and to attend at the appointed times for several meetings. After missing three such meetings in March 2002, the Applicant's mother put the meetings "on hold." A meeting was also set up between the Applicant and Ms. Lariviere on June 21, 2002. According to her report dated June 21, 2002, the meeting was essentially non-productive. The Applicant failed to follow through on data collection required for his treatment, despite his checklist reminders, and he became irate and uncooperative, resorting to loud talk and swearing during the session. Because of the Applicant's lack of cooperation and participation in the CCAC program, Dr. Pryor concludes, in a report dated July 19, 2002, that the Applicant's involvement should be terminated. CCAC suggested that the Applicant be referred to an acquired brain injury facility, Bloorview-MacMillan Children's Centre (Bloorview-MacMillan") for group and individual therapy.

Acquired Brain Injury Assessment by Bloorview-MacMillan Children's Centre

The Applicant was assessed by Dr. Monica Gemeinhardt, a family support service psychologist with Bloorview-MacMillan, whose assessment involved home interviews, telephone consultations and case conferences in November and December 2001. In reports dated October 1 and 22, 2002, Dr. Gemeinhardt reviewed the Applicant's medical history, the details of the accident, and the Applicant's current medical complaints, and recommended training for the Applicant and his mother on coping with the Applicant's brain injury and depression. The October 22, 2002 summary report notes that the Applicant failed to attend a scheduled follow up meeting at the TRI facility with Dr. Gemeinhardt and Dr. Bayley and that the individual personality assessment and counselling portion of the Bloorview-MacMillan program were never commenced.

Med/Rehab DAC Assessment of Need for Psychological Treatment

Dr. Lorne Sokol, the Applicant's family doctor at the time, recommended the Applicant attend a program with Bartimaeus Rehab Support Services ( "Bartimaeus") which provides transitional support to clients recovering from brain injuries and depression.

Dr. M. Gadon, a psychologist, who assessed the Applicant as a Med/Rehab DAC assessor on October 7, 2002, with respect to the treatment plan, concluded that the treatment plan was not reasonable and necessary. He found that the Applicant was not suffering from a mood disorder or a psychological pain disorder as a result of the June 14, 1997 accident. Dr. Gadon attributed the Applicant's problems to motivational factors and pre-accident childhood abuse and trauma. Dr. Gadon pointed to the Applicant's poor attendance at, and non-compliance with, treatment and concluded he would not be a suitable candidate for the Bartimaeus program.

Psychological Assessments by Dr. Peter Waxer

The Applicant's counsel requested a psychological assessment by Dr. Peter Waxer, a psychologist, in connection with an Ontario Disability Support Plan ("ODSP") benefit application. Dr. Waxer testified at the hearing. In his report dated August 3, 2002, he diagnosed chronic pain disorder with both psychological factors and a general medical condition, and concluded that the Applicant continued to suffer a substantial impairment, an inability to attend to his personal hygiene, to function in a working capacity, or to return to school. In his report, Dr. Waxer expressed difficulty in arriving at a prognosis, recommending a neuropsychological assessment as essential to a comprehensive evaluation of the Applicant, and a pain management program.

The Applicant's counsel also requested a medical-legal opinion from Dr. Waxer, which he set out in a report dated November 4, 2003. Dr. Waxer reported and testified at the hearing that the Applicant had a "mild closed head injury which appears to have shown some improvement in the two years between our initial and this current assessment." Dr. Waxer testified that he agreed with Dr. Sandor's opinion that the Applicant's conditions were caused by the motor vehicle accident. He further stated in his report, and confirmed in testimony, that the assessment did not reveal malingering or unconscious compensation neurosis on the Applicant's part, but rather a genuine interest in expediting his own recovery. Dr. Waxer concludes in his November 4, 2003 report, and confirmed in testimony, that the Applicant continued to suffer a substantial impairment and a complete inability in accordance with the Schedule.

Psycho Vocational Assessment by Dr. Philip Miller

The Applicant's counsel also requested a medical - legal psycho vocational assessment by Dr. Philip Miller, a psychologist, who prepared reports dated January 5, 2003 and November 17, 2003 to assess the Applicant's employability after the accident. Dr. Miller also testified at the hearing. Dr. Miller did a detailed review of the Applicant's past medical records, including his educational records and hospital records; and the psychiatric, neuropsychological, psychological, family doctor and treatment facility assessments. He administered several psychological tests. At the outset of his January 5, 2003 report, Dr. Miller indicated that the Applicant demonstrated serious memory problems during the assessment. In the January 5, 2003 report, Dr. Miller diagnosed "a cognitive disorder not otherwise specified" and "a pain disorder associated with both psychological factors and a general medical condition, chronic." In that report, Dr. Miller states, and confirms in testimony, that:

This disorder, it should be emphasized, is in no way synonymous with conscious symptom magnification. This is a very real disorder, associated with genuine suffering and significant disablement. Like his cognitive difficulties, [Mr. C.'s] pain disorder is accident related and, given its severity, chronicity and the fact that it has proven refractory to treatment to date, carries with it a very poor prognosis.

In that report, Dr. Miller also diagnosed "a major depressive disorder, chronic, of moderate severity, associated with significant anxiety symptomatology." He testified that the depression is accident-related. Dr. Miller also testified that the Applicant is unemployable in any capacity and not yet suitable for upgrading or retraining because he presented with so many difficulties coping with daily life. He recommended a multi disciplinary pain program.

In his November 17, 2003 report, Dr. Miller observed that the Applicant's pain conditions had grown worse since January 5, 2003. He noted that the Applicant was less depressed because he had began to receive ODSP benefits, but that his cognitive problems persisted. Dr. Miller concluded in that report, and testified, that the prognosis was even worse than he had previously assessed because time had lapsed without any improvement in his functioning.

Neuropsychological Assessment by Dr. Hal Scher

The Applicant's counsel requested a medical-legal neuropsychological opinion from Dr. Hal Scher, a neuropsychologist, who prepared a report dated December 31, 2002. Dr. Scher testified at the hearing. He assessed the Applicant on December 7, 9 and 17, 2002 by interviewing the Applicant and his mother, and administering a battery of neuropsychological tests. He reviewed hospital records and diagnostic reports; as well as family physician, neuropsychological, psychological, psychiatric and physiatrist reports; and the 1993 psycho educational reports from the Applicant's school.

Dr. Scher concluded in his report, and confirmed in testimony, that the Applicant suffered a moderately severe traumatic head injury in the accident which, together with chronic pain and the resulting sleep disturbance, has resulted in permanent cognitive impairments. He diagnosed post concussional disorder, major depressive disorder, and pain disorder associated with a general medical condition and psychological factors, right temporal lobe compromise, as reflected in weak visual memory. He gave a prognosis of poor. He reported and testified that the Applicant is disabled from participating in the competitive labour market due to the chronicity and severity of his symptoms.

Neuropsychological Assessment by Dr. Ivan Kiss

Progressive requested a medical-legal neuropsychological assessment by Dr. Ivan Kiss, who saw the Applicant on July 9 and 22, August 7 and September 4, 2003 and prepared a report dated September 30, 2003. Dr. Kiss also testified at the hearing. Dr. Kiss reviewed the Applicant's medical documentation, interviewed the Applicant and administered neuropsychological testing. Dr. Kiss's document review consisted of a detailed examination of: hospital records, disability certificates, reports of family doctors and reports from the Insurer's case management facility, as well as a review of orthopaedic, psychiatric, psychological, neuropsychological, Med/Rehab DAC and psycho-educational and vocational assessments. Dr. Kiss states that the Applicant gave little or no information regarding his last recollections before the accident; of his first post-accident memories; or of his past except for "little flashbacks and childhood stuff."

Dr. Kiss concluded that the Applicant's presentation "...does not support major attention or memory deficits per se, but suggests factors other than traumatic brain injury may limit performance at times." In contrast to Dr. Scher's assessment, Dr. Kiss found that the "current data do not support specific visual/non verbal memory deficit." Dr. Kiss reported and testified there is insufficient evidence to support his suggestion of "acquired brain injury" or of "right temporal lobe compromise." [emphases in text]. But Dr. Kiss did conclude that the Applicant suffers from "significant emotional/psychiatric difficulties, with features of somatoform disorder and depressive disorder" and that "the accident of June 14, 1997 precipitated current emotional dysfunction." Dr. Kiss testified that the Applicant had sustained a mild head injury, had likely recovered to pre-accident levels, and that his cognitive capabilities were not a major barrier to his return to pre-accident activities. But Dr. Kiss also recommended psychotherapy and occupational therapy to assist with his return to work and school.

Physical Assessments:

Treatment by Dr. Lorne Sokol and Orthopaedic Assessments by Dr. Reuven Lexier

In an initial x-ray report dated January 5, 2001, Dr. Reuven Lexier, an orthopaedic surgeon (referred by Dr. Brown, the family doctor), observed that the Applicant's left hip looked "unusual." However, he found that a September 22, 2000 x-ray revealed a normal left hip and a scoliotic curve in his back. Dr. Lexier saw the Applicant on January 5 and February 13, 2001. In his report dated February 13, 2001, Dr. Lexier confirms the results of the September 22, 2000 x-ray. He notes that a bone scan performed on January 26, 2001 demonstrates increased uptake at T9 and T10, with no degeneration which, in Dr. Lexier's view, is consistent with previous trauma to the thoracic spine. In his February 13, 2001 report, Dr. Lexier opines:

In my opinion, this is rather significant in that these changes have persisted despite the passage of 3 ½ years since the motor vehicle accident. Unfortunately, there is no baseline study that was undertaken immediately after the motor vehicle accident.

On August 21, 2001, the Applicant began to see a family doctor, Dr. Sokol, a certified acupuncturist and a family medicine and pain management specialist. Dr. Sokol testified at the hearing. In a medical report to the Applicant's counsel, dated May 28, 2002, prepared in relation to the rejection of his ODSP benefit application, Dr. Sokol found that the Applicant suffered, and continues to suffer, from substantial physical and mental impairments since the June 14, 1997 motor vehicle accident. He testified that he found the Applicant's pain complaints to be genuine. Dr. Sokol diagnosed chronic pain disorder, panic disorder, generalized anxiety disorder and dysthymia. He reported and testified that the Applicant's prognosis is "dismal" to "very poor." He stated in his report and confirmed in testimony that the Applicant would never be able to work outside the house since he was not able to do easy household tasks at his own apartment.

Subsequently, the Applicant's counsel retained Dr. Lexier to conduct a medical-legal orthopaedic assessment. Dr. Lexier saw the Applicant again on July 11, 2002. In a report dated July 15, 2002, he maintained his opinion of the bone scan results. He further stated that it was possible he sustained a minor compression fracture which is consistent with trauma from a motor vehicle accident. Dr. Lexier concluded:

The usual prognosis for a minor compression fracture is good to excellent. In view of the fact that there is no significant compression of the vertebrae and no significant degenerative change noted on the x-rays obtained in 2001, it is unlikely that [Mr. C.'s] injuries will produce permanent pain and/or disability.

Dr. Lexier proposed no further assessment or treatment and stated that he was unable to give an opinion as whether the impairment will impact on the Applicant's ability to earn an income.

Pain Management Assessment by Wasser Pain Management Centre

The Applicant attended with his mother for an assessment of his chronic pain complaints at the Wasser Pain Management Centre at Mount Sinai Hospital ("Wasser") on June 27, 2002. The Applicant spoke to Dr. Paul Tumber about his chronic headaches, mid-back, lower back, neck and right hip pain and his muscle spasms and weakness in his arms, legs and back. Dr. Tumber also noted anxiety, depression, sleep problems and irritability. Dr. Tumber diagnosed myofascial pain but found the Applicant did not demonstrate excessive trigger points. He discussed with the Applicant and his mother the interrelation between chronic pain and depression and the need to move towards rehabilitation.

Orthopaedic Assessment by Dr. Geoffrey Lloyd

Progressive requested a medical - legal opinion from Dr. Geoffrey Lloyd who prepared a report dated November 26, 2003. Dr. Lloyd testified at the hearing. He indicated that he did an extensive review of the 52 medical documents furnished by Progressive for his assessment of the Applicant. Dr. Lloyd found from a musculoskeletal perspective that as "a worst-case scenario", the Applicant may have sustained a mild compression fracture at the T9 and T10 level. He pointed out that the abnormality Dr. Lexier found in that area appeared in an x-ray taken sometime after the June 14, 1997 accident and testified for this reason he could not be certain the injury was accident-related. However, similar to Dr. Lexier's opinion, he testified that the prognosis for a minor thoracic compression fracture is excellent. In his report, Dr. Lloyd concludes:

The overall sense one has is that, if disability exists, it finds its origin either in attitudinal issues or issues relating to psychopathology. The latter will obviously have to be addressed by specialists in that field. There is no musculoskeletal justification for such a complete withdrawal from life's activities.

REASONS FOR DECISION:

Income Replacement Benefits

There is no question that the Applicant presents a complex medical picture made more complicated by social, economic and pre- and post-accident health factors. There is variation in opinion among medical assessors about the extent of the Applicant's current medical problems and the cause of these problems. But they largely agree the Applicant sustained an injury in the motor vehicle accident and has health problems today. The difficult question is whether and to what extent the accident contributed to the Applicant's post-accident medical problems.

The Applicant claims entitlement to income replacement benefits during the period two years after the accident, from November 20, 1997 until June 14, 1999, under subsection 4(1), paragraph 1 of the Schedule; and for the period ongoing after the two-year period, from June 15, 1999 onwards, under 5(2)(b) of the Schedule. Under the statutory accident benefits scheme, at a threshold level, an applicant must first show that he sustained an "impairment" as a result of the accident. He then must establish that he satisfies the functional disability tests set out in subsection 4(1), paragraph 1 and subsection 5(2)(b) of the Schedule.

Subsection 4, paragraph 1 provides:

The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:
The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment, [emphasis added]

Subsection 5(2)(b) of the Schedule states as follows:

(2) The insurer is not required to pay an income replacement benefit,

(b) 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;... [emphasis added]

Causation

Progressive's counsel raised a causation issue. She submitted that the Applicant's cognitive, psychological and physical problems stem not from the June 14, 1997 car accident, but from experiences in the Applicant's pre- and post-accident life. In testimony, the Applicant demonstrated little memory of his childhood. Progressive's counsel cross-examined the mother about some of the difficulties she and her family faced in their lives before the accident.

The Applicant argues that his psychological, cognitive and physical conditions are a result of the accident and that any childhood cognitive, psychological and physical problems did not affect his ability to complete grade 11 before the accident, to work at various jobs and to live the normal life as a young child and teenager. As noted earlier, this accords with Dr. MacDonald's statement that the Applicant had not previously suffered from the types of problems he developed after the accident. The Applicant submits that before the accident for several months, he had been able to function as an autobody repair person.

On cross-examination, the mother stated that her three oldest children were placed in foster care during a six-month period when she was ill. She testified that the Applicant was sexually abused by a stepfather at age seven or eight years; that from ages 8 to 15 years, a subsequent stepfather, an alcoholic, committed further abuse against her sons, including the Applicant, by constantly kicking, hitting and slapping them.

Progressive's counsel also highlighted references to numerous physical injuries in the Applicant's pre-accident medical record. The record reveals that the Applicant broke his collar bones about six or seven times before the accident as a result of falling while roller blading and wrestling.

Progressive further referred to a psychological report dated September 3, 1993 from The Northumberland and Newcastle Board of Education where the Applicant attended school as a child. According to the report, the Applicant was referred for assessment because of learning and behavioural problems. Progressive pointed to notations that the Applicant had changed schools several times and by grade 3, has been "at risk" for four years. The school records show that the Applicant demonstrated learning disabilities in reading, language, organizational skills, and overall weakness in speed of mental processing.

Progressive argued that the Applicant's post-accident learning and memory problems are not a result of the accident, but rather a reflection of long-term problems dating back to his childhood.

I considered Progressive's arguments on causation and have decided to make no finding on the effect, if any, of the Applicant's childhood abuse, learning and cognitive problems and his pre-accident left clavicle fractures on his post-accident health.

Concerning the Applicant's early childhood abuse, without speaking specifically about the Applicant's case, some assessors comment that early childhood abuse can tend to continue to cause ongoing emotional problems. Other assessors were reluctant to express opinions on the possible effects those types of experiences had on the Applicant's development. The Applicant, through his mother, submits that he overcame these problems. I make no findings on the causation issue as it relates to the childhood abuse since I find I received no definitive medical opinion on that matter.

In answer to the findings of the 1993 psycho-educational assessment, the Applicant, through his mother, testified that he overcame these problems. Dr. Miller reported that aptitude test scores reveal a history of learning disabilities. However, I received no definitive expert evidence on the extent to which any early learning and cognitive problems might have affected the Applicant's abilities later in his life. I therefore make no finding on this matter.

As well, regarding the Applicant's early problems with clavicle fractures, I received no medical opinion that connects these injuries to the Applicant's post-accident chronic pain condition.

In any event, I accept Dr. MacDonald's statement that the Applicant did not suffer from his accident-related conditions previously.

Progressive points to post-accident events to explain the Applicant's cognitive and psychological problems, with specific reference to comments in the St. Michael's records. Given the medical and family evidence about the Applicant's condition post-accident, I find the injures from the accident materially contributed to his post-accident medical picture.³ I find in this case that the accident is the predominant cause of the Applicant's health problems.

Impairment

The evidence establishes to my satisfaction that the Applicant's cognitive, physical and psychological problems are impairments he sustained as a result of the June 14, 1997 accident. In arriving at my decision, I preferred the opinions of the medical practitioners who assessed the Applicant before he became reconnected with the arbitration process (the non-medical-legal opinions); the Applicant's medical-legal opinions; and the oral evidence of the Applicant and his family, over Progressive's medical-legal opinions and the Med/Rehab DAC's opinion. I find the non-medical-legal opinions are more balanced as not being prone to the effects of the arbitration process. The family provided consistent, credible and uncontroverted evidence of the circumstances of the Applicant’s life during the lapse in time where medical evidence is scarce. Their evidence was consistent with Dr. MacDonald's statement in the health practitioner's certificate that the Applicant had not previously suffered from the medical problems he developed after the accident. I relied on Progressive's medical-legal opinions where they are in accord with the evidence I prefer.

The Applicant’s family doctor came to an early conclusion that the Applicant would be capable of returning to his pre-accident activities by August 1997. The neurologist who assessed the Applicant at his family doctor's request found that the Applicant suffered no neurological disabilities and concluded he could resume his pre-accident activities. Progressive terminated the Applicant's accident benefits on the strength of those opinions in November 1997.

In view of the credible evidence from the Applicant and his family, I find the Applicant continued to suffer from his accident-related injuries and to display the same symptoms he developed after the accident. I find therefore that he was prematurely released from medical care for his accident-related injuries. I conclude that after that point the Applicant unfortunately fell through the cracks of the insurance and medical systems.

I accept the Applicant's, his mother's and his brother's testimonies that the Applicant has never recovered from the injuries he sustained in the accident. Their evidence is that immediately after the accident the Applicant complained of short-term memory loss, headaches, back pain, fatigue, dizziness, nausea and confusion, and he has continued to be dogged by those problems up to the present.

Except for the medical records from visits to medical practitioners in 1998 for his broken left clavicle, there are no medical records of the Applicant's health picture from the time of benefit termination until he attended St. Michael's in January 2000. So there is an approximate two-year gap in the medical evidence. However, I accept the Applicant's, his mother's and his brother's oral evidence as a credible source of information about his health during that period, in absence of any evidence to the contrary. I conclude the family's oral testimony provides a critical link between the Applicant's condition in October 1997 and January 2000. That oral evidence is very important to my determination because the family saw the Applicant on a daily basis throughout the greater part of the period after the accident up to the present. He lived with his brother in Toronto for a couple of years and eventually moved to a basement apartment below that of his mother, where he remains today.

Also important to my decision is that I have no medical evidence from the two-year gap period that establishes a non-accident-related cause for the Applicant's conditions.

The various medical assessors who evaluated the Applicant from 2000 to 2003 observed the Applicant's cognitive, psychological and physical conditions and most conclude that the Applicant is suffering from impairments he sustained as a result the June 14, 1997 accident.

The Applicant attended psychologists, neuropsychologists, a neuro-psychiatrist, psychiatrists, physiatrists, orthopaedic surgeons, pain specialists and neurologists, as well as, programs for pain management, acquired brain injury, and cognitive and behavioural therapy. The symptoms the Applicant presented before these specialists were the same symptoms he complained of immediately post-accident, which are in turn the same symptoms described by him and his family up to the present. Some of these specialists were charged with assessing the cause of his impaired memory, communication and language problems, dizziness, blurred vision, sleeplessness; and physical problems of pain, numbness and tingling in the thoracic spine, legs, neck and head; and his emotional problems and psychological problems with depression.

While the diagnostic labels for this constellation of conditions might differ from expertise to expertise, and at times even within an expertise, I find that does not alter the fact that the Applicant suffers from significant impairments.

To summarize, regarding the Applicant's cognitive and psychological problems:

Dr. Sandor, the neuro-psychiatrist from Toronto Western, diagnoses post concussive syndrome and chronic pain and concludes that the Applicant’s medical problems stem from his motor vehicle accident.
TRI diagnosed chronic pain disorder and post concussive syndrome and concludes that the Applicant sustained a mild head injury, and that "25 % of individuals with mild head injuries will develop chronic symptoms."
Psychologists working for CCAC concluded that the Applicant should undergo memory, relaxation and cognitive-behavioural training.
Bloorview-MacMillan recommended training for the Applicant and his mother on coping with the Applicant's brain injury and depression.
Dr. Waxer, a psychologist retained by the Applicant, found that the Applicant suffered a mild closed head injury caused by the accident and that the Applicant suffered a complete inability to engage in any employment.
Dr. Sokol, the Applicant's family doctor, diagnosed chronic pain disorder, panic disorder, generalized anxiety disorder and dysthymia and concluded the Applicant would never be able to work outside his house since he was not able to do basic household chores.
Dr. Miller, a psycho-vocational assessor retained by the Applicant, diagnosed a moderate, chronic major depressive disorder, associated with significant anxiety symptomatology which the Applicant developed as a result of the accident. Dr. Miller concludes that the Applicant is unemployable in any capacity and not suitable for training or upgrading.
Dr. Scher, a neuropsychologist retained by the Applicant, concluded that the Applicant suffered a moderately severe traumatic brain injury in the accident, with chronic pain and sleep disturbances, resulting in some permanent cognitive impairments. He diagnosed a post concussional disorder, a major depressive disorder and pain disorder associated with a general medical condition and psychological factors. Dr. Scher concluded that the Applicant's conditions were the result of the accident and that he is disabled from participating in the competitive job market.
Dr. Gadon, a psychologist and Med/Rehab DAC assessor, found the Applicant did not suffer from a mood disorder or a psychological pain disorder as a result of the accident.
Dr. Kiss, a neuropsychologist retained by Progressive, concluded that the Applicant suffers from significant emotional/psychiatric difficulties, with features of somatoform disorder and depressive disorder that appear to be have been precipitated by the accident. However, he concluded that the Applicant had likely returned to pre-accident function and that no barriers existed to his return to pre-accident activities. But Dr. Kiss recommended occupational therapy and psychotherapy to assist him to return to work and school.

The predominant theme throughout the majority of these reports, with little exception, is that the Applicant is genuine and not displaying features of a malingerer or someone with secondary motivations. Some of the assessors clearly link the Applicant's cognitive and psychological symptoms to the accident, while others are silent on the issue. In making the link, I had an advantage over the assessors who were silent, of hearing the detailed oral evidence of the Applicant, his mother and his brother.

The opinions of the orthopaedic assessors who evaluated the Applicant’s thoracic spine condition, did not present as strong opinions linking this condition to the accident. Both Dr. Lexier and Dr. Lloyd provided prognoses of good to excellent for the compression fracture at the T9 and T10 level. The Applicant, however, has continued to complain of pain in his mid-back between his shoulder blades. Again, I accept the Applicant's and his family's uncontroverted evidence that the Applicant continues to suffer from disabling mid-back pain and left hip pain, along with his other physical complaints.

I am persuaded that the Applicant meets the threshold criterion of establishing that he sustained cognitive, psychological and physical impairments as a result of the June 14, 1997 accident, as required by subsection 4(1), paragraph 1 of the Schedule.

The Substantial Inability Test

I received very little information about the Applicant's pre-accident job in 1997 as an autobody worker. When asked about the job and his tasks, the Applicant could not recall very much. The evidence I have is that he was required to clean, rust proof and detail automobiles five days per week, for 20 hours per week and that he was paid for this work. In the circumstances, given the Applicant's memory problems, I find it is understandable that he might not recall the details of a job he did seven years ago.

I find it would be unreasonable and unfair for the Applicant's entitlement to income replacement benefits to be adversely affected because a memory condition caused by the accident presents a barrier to him providing evidence about the essential tasks of his employment. I find it reasonable in these circumstances for me to refer to the job description for an Autobody Repairer as set out in the National Occupational Classification (NOC) Table⁴, for evidence of the particular tasks of a person doing this job. The NOC is an established governmental source of occupational and employment information. The following is the job description set out for an Autobody Repairer, NOC Code 7322:

Main duties

Workers in this unit group perform some or all of the following duties:

Review damage report and estimates of repair cost and plan work to be performed
Repair and replace front end components, body components, doors and frame and underbody components
Hammer out dents, buckles and other defects using blocks and hammers
Operate soldering equipment or use plastic filler to fill holes, dents and seams
Remove damaged fenders, panels and grills using wrenches and cutting torch and bolt or weld replacement parts into place
Straighten bent frames using frame and underbody pulling and anchoring equipment
File, grind and sand repaired body surfaces using hand and power tools
Apply primers and repaint surfaces using brush or spray guns
Repair and replace glass components such as windshields, windows and sunroofs
Repair or replace interior components, such as seat frame assembly, carpets and floorboard insulation
Inspect repaired vehicles and test drive vehicles for proper handling

Various medical assessors who assessed the Applicant's cognitive, psychological and chronic pain conditions, namely Dr. Scher, Dr. Waxer, Dr. Miller and Dr. Sokol, concluded that the Applicant was disabled from resuming his pre-accident employment and activities. I accept these opinions over the opinions of Dr. Kiss, Dr. Gadon and Dr. Lloyd who found that the Applicant's conditions are not disabling. I find the preponderance of the evidence belies Dr. Kiss's, Dr. Gadon's and Dr. Lloyd's findings on the Applicant's disability.

I find that taking into consideration the descriptions by the Applicant and his family of the Applicant's medical conditions and how they affected him on a daily basis, it is not reasonable to expect that a person in the Applicant’s condition could work five days per week, 20 hours per week outside his home, day-in and day-out, performing the physical tasks in the NOC description. The evidence of the Applicant and his family is that he could barely leave the house each day because of fatigue due to sleep deprivation, pain and cognitive problems like dizziness and nausea. The Autobody Repairer position requires the use of soldering equipment and other power and hand tools to repair parts of cars, which could present dangers to a person with physical tolerance problems, blurred vision, sleepiness and other cognitive deficiencies.

I find it is reasonable to conclude that a substantial number of the tasks involved in this job require physical endurance, a variety of body postures, remaining in one posture for long periods of time - the types of tasks that the evidence shows the Applicant’s physical condition could not tolerate, given his chronic pain and back problems.

For all these reasons, I find that the Applicant has established that he is substantially disabled from performing the essential tasks of an Autobody Repairer pursuant to subsection 4(1), paragraph 1 of the Schedule. The Applicant is entitled to income replacement benefits from November 20, 1997 to June 14, 1999 at the rate of $275.30 per week.

The Complete Inability Test

Arbitration decisions have held that the complete inability test is a more difficult test to satisfy than the substantial inability test.⁵

I find that the Applicant satisfies the requirements of the complete inability test. I conclude the evidence establishes to my satisfaction that the Applicant suffers a complete inability to perform the tasks of any employment for which he is suited by education, training or experience.

At the time of the accident, the Applicant was 18 years of age and had completed grade 11. According to the Applicant's and his family's evidence, his employment history consisted of a series of part-time jobs - doing general labour and farm chores, working at a golf course and at a factory making paddles. There is some evidence that after the accident, in about 1998, the Applicant attempted to work in a warehouse at Brewers' Retail loading cases of beer, which the Applicant and his mother testified, he had to quit because he could not cope with the lifting required. I accept this evidence as being consistent with the limitations on the Applicant expressed in the medical evidence before me. As well, at the time of the accident, he had completed several months of training as an autobody repairer.

I therefore find the Applicant is restricted in the work he can reasonably do by: his lack of experience owing to his young age; his limited education; his limited training in autobody repair; and his past experience limited to part-time labour, farm, golf course and factory work. The evidence is that these positions are largely physically demanding.

Dr. Waxer, Dr. Scher, Dr. Sokol and Dr. Miller gave opinions, stating in various ways, and I accept, that the Applicant was completely disabled and incapable of participating in the labour force because of his chronic, persistent cognitive, psychological and pain conditions. I find TRI's opinion that 25 % of people with mild head injuries become chronic tends to validate the chronicity of the Applicant's condition. As well, I note Dr. Miller's finding that the Applicant's conditions worsened in the time between his 2002 and 2003 assessments forecasts a decline in the Applicant’s health with time rather than an improvement or a stabilization of his condition.

Dr. Miller prepared a psycho-vocational report based on assessments of the Applicant on November 7, 2002 and November 13, 2003, to which I accord some weight. In reviewing the Applicant's background, he took account of the types of jobs the Applicant had performed before the accident. He administered a variety of psychological and aptitude tests which revealed, according to Dr. Miller, that the Applicant had considerable difficulty with the very minimum demands of psychometric testing and consequently "was unable to produce test results that even remotely approximated the levels recognized as necessary to function competitively in the Canadian labour market." He observed that the Applicant presented with:

... widespread pain with which he was not coping at all well, with significant levels of anxiety and depression, and with cognitive deficits of both organic and psychological origin, not to mention some of the personality changes and behavioural difficulties often seen after head injury."

He concluded "[Mr. C] is not yet capable of returning to competitive employment of any kind."

It was Dr. Miller's opinion, like other assessors, that the Applicant's performance and presentation were genuine expressions of significant disability. Dr. Miller testified that the Applicant's condition worsened during the year between the times he assessed him because his conditions went untreated. Dr. Miller expressed pessimism about the prospect of significant improvement.

Progressive relies on Dr. Kiss's opinion to establish that the Applicant is not completely disabled. I find some conclusions in Dr. Kiss's report appear to be at odds with each other. That is, Dr. Kiss found psychiatric, cognitive and emotional problems and recommends an occupational therapist and psychotherapist to assist the Applicant with a return to work or school. And yet, he concludes that the Applicant has likely returned to approximately pre-accident levels. I find Dr. Kiss did not explain in testimony, to my satisfaction, this seeming contradiction in his opinion.

Despite the seeming inconsistency, I draw from Dr. Kiss's report that he, like the other assessors, recognized that the Applicant was disabled at the time of his assessment and needed psychological treatment and rehabilitation before he could enter retraining or the work force. The disability test in subsection 5(2)(b) of the Schedule is written in the present. It provides for income replacement benefits if the insured person is suffering a complete inability to engage in any employment. I find this provision contemplates consideration of the Applicant's disability status in the present, at the time of the assessment, and not sometime in the future after further treatment and rehabilitation are completed.⁶

I accord no weight to Dr. Kiss's opinion where it diverges from the main body of medical and testimonial evidence before me.

Dr. Waxer, Dr. Scher, Dr. Sokol and Dr. Miller focussed on the chronic and persistent nature of the Applicant's cognitive, psychological and pain conditions - which information they drew from interviews with the Applicant and his mother - in assessing whether the Applicant is capable of working at any jobs. As noted above, I find the accounts of the Applicant and his family a valid and credible source of information about the circumstances of the Applicant's daily life. I accept the family's descriptions of the Applicant as significantly limited in his physical, social, intellectual and mental abilities, and their view that he is not capable of leaving his apartment every day to undertake a job of the type he is qualified for given his educational, training and employment background.

For these reasons, I find the Applicant meets the requirements of the complete disability test pursuant to subsection 5(2)(b) of the Schedule. The Applicant is entitled to income replacement benefits from June 14, 1999 and ongoing at the rate of $275.30 per week.

Interest:

The Applicant seeks interest on his income replacement benefits owing from the date of benefit termination, November 19, 1997 pursuant to subsection 46(2) of the Schedule.

Progressive's counsel argues that if any interest is found owing, it should be calculated from June 5, 2001, when the Applicant's counsel first contacted Progressive about the Applicant's outstanding claim. She argues that if it is found that income replacement benefits are overdue, Progressive should not have to pay interest between November 19, 1997 and June 5, 2001 because, in her view, Progressive's position was greatly prejudiced by not having had contact with the Applicant for over three years, which prevented Progressive from evaluating the Applicant's pre-accident employment, from assessing his post-accident medical status, and from participating in the Applicant's rehabilitation. Progressive's counsel pointed out that early rehabilitation might have assisted in the Applicant's early recovery.

I accept Progressive's arguments. I find that Progressive properly terminated the Applicant's income replacement benefits on November 19, 1997, based on the medical opinions of the Applicant's family doctor, a neurologist and the results of diagnostic testing. The lag in time before the Applicant approached Progressive again, although understandable given the Applicant's medical conditions, is not attributable to the conduct of Progressive. The situation was clearly out of Progressive's hands during that period. I accept Progressive's counsel's submissions that Progressive was disadvantaged in the circumstances by not having the opportunity to follow through with medical assessments and rehabilitation and the evaluation of his employment situation.

I find under these circumstances, that interest shall not be payable from November 20, 1997 to June 5, 2001.

Progressive shall pay interest on the overdue income replacement benefits, calculated pursuant to subsection 46(2) of the Schedule, from June 6, 2001 when the Applicant's counsel made the first contact with Progressive.

Special Award

The Parties' Arguments

Subsection 282(10) of the Insurance Act provides arbitrators with the authority to consider an insurer's conduct in deciding whether to impose an award under certain circumstances.

(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

The Applicant's counsel argues that the Applicant is entitled to a special award. He submits that Progressive terminated the Applicant's benefits under circumstances where it had an obligation to continue to adjust the claim after termination and an obligation to reinstate benefits when medical evidence of the Applicant’s disability became available.

The Applicant's counsel submits that while the termination on its face was proper, Progressive was in a position to see they were dealing with an 18 year old, living on his own, who had sustained a head injury. This, according to the Applicant's counsel, should have alerted Progressive to being more guarded in terminating the Applicant's rights. He submitted that the termination letter sent to the Applicant shows that Progressive's focus was more on closure than adjustment of the file. He pointed out that the rehabilitation worker from NRCS delivered assistive devices during her last visit which, according the Applicant's counsel, is an indication that Progressive knew the Applicant was having problems from his head injury.

The Applicant's counsel, relying on the Amato⁷ arbitration case, submits that Progressive also had a clear obligation to reinstate income replacement benefits when medical evidence of the Applicant's disability subsequently became available.

The Applicant's counsel also argues that when Progressive received Dr. Kiss's report in November 2003, they ought to have reinstated benefits at that time. The Applicant's counsel pointed out that Dr. Kiss did not provide an opinion that the Applicant was not disabled. So, according to the Applicant's counsel, Dr. Kiss's report, together with the numerous assessments by other medical practitioners, ought to have caused Progressive to reinstate benefits.

The Applicant’s counsel further argues that Progressive could have reinstated benefits at mediation in May 2002, or at the pre-hearing discussion in July 2003, with the evidence available at those times, before it received Dr. Kiss's report.

The Applicant’s counsel argues that Progressive had many opportunities to reinstate benefits, but failed to do so and for this reason should attract a special award.

Progressive's counsel argues that this is not the proper case for a special award and that in the circumstances, Progressive did not unreasonably delay or withhold income replacement benefits. She argued that certain factors, as set out in the Persofsky⁸ case, should be taken into account in determining the appropriateness of imposing a special award such as: the amount of benefits unreasonably withheld or delayed; the time the benefits were withheld or delayed; the failure of important obligations under the SABS; other factors increasing the gravity of an insurer's conduct; mitigating factors; and other penalties.

Regarding the latter factor, Progressive's counsel submits that if interest is imposed on income replacement benefits, this should be taken into account when considering a special award. She relies on the words of the Director of Arbitrations in Persofsky where he indicates that the obligation on insurer's to pay higher interest under the Schedule may be a factor in assessing the proportionality of a special award.

Entitlement:

After considering the parties' submissions, I have decided that Progressive's conduct in this case is deserving of a special award. I base the award on Progressive's failure to reinstate benefits in the face of mounting evidence of the Applicant’s disability after the Applicant’s counsel contacted Progressive on the Applicant's behalf on June 5, 2001.

I accept the Applicant’s counsel’s argument that a reasonable point for Progressive to have reinstated benefits would have been November 2003 when it received the neuropsychological assessment from Dr. Kiss. When Progressive requested Dr. Kiss's opinion, it already had numerous medical assessments by various medical assessors and facilities that point to significant, cognitive, psychological and physical disabilities. Progressive requested its own neurological assessment which concluded that the Applicant suffers from psychiatric, emotional and cognitive problems and recommended an occupational therapist and psychotherapist to assist the Applicant with a return to work or school. As I noted above, Dr. Kiss's report recognized the Applicant's medical problems and his need for assistance to return to work. I find this suggests Progressive ought to have known the Applicant was disabled and incapable of working.

I find, under these circumstances, that when Progressive received Dr. Kiss's assessment, it ought to have reinstated the Applicant's benefits.

I considered the Applicant's counsel's submissions that Progressive's conduct in terminating benefits ought to attract a special award. Although the family doctor's and the neurologist’s medical opinions turned out to be inaccurate forecasts of the Applicant's recovery, I find that Progressive was entitled to rely on them in its decision to terminate benefits. The family doctor provided her opinions on a number of documents - health practitioner's certificates and a number of sign back letters to the case manager. There were also neurological diagnostic tests with negative results. I therefore find it was not unreasonable for Progressive to terminate the Applicant's benefits under these conditions.

For these reasons, I find Progressive is liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.

Amount of Award:

I find a lump sum special award of $5,000 inclusive of interest is appropriate in the circumstances. In arriving at this amount, I took into account the factors set out by the Director of Arbitrations in Persofsky. I considered that the award would be calculated based on income benefits at $275.30 per week; that I found the benefits were unreasonably withheld from November 2003; that the lapse in time in the Applicant's claims being reconsidered by Progressive is not attributable to Progressive's conduct; and that Progressive is required to pay interest for overdue income replacement benefits.

Progressive shall therefore pay a lump sum special award of $5,000 inclusive of interest pursuant to subsection 282(10) of the Insurance Act.

EXPENSES:

The parties provided no evidence or submissions on the expense issue. I encourage the parties to settle that issue, and failing that, they can approach the Commission for an assessment of expenses.

September 24, 2004

Beth Allen Arbitrator

Date