Neutral Citation: 2004 ONFSCDRS 175

FSCO A03-000361

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CHETSHUBROOK

Applicant

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Robert A. Kominar

Heard:

February 16, 17, 18, 2004, in Hamilton, Ontario.

Appearances:

Stuart Aird for Mr. Shubrook

Pamela M. Stevens for Lombard General Insurance Company of Canada

Issues:

The Applicant, Chet Shubrook, was injured in a motor vehicle accident on November 27, 1997. He applied for and received statutory accident benefits from Lombard General Insurance Company of Canada ("Lombard"), payable under the Schedule.¹ Lombard terminated weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Shubrook applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Shubrook entitled to receive income replacement benefits in the weekly amount of $379.62 for the period from September 12, 2002 and ongoing?

2. Is Mr. Shubrook entitled to interest on the overdue payment of benefits pursuant to section 46(2) of the Schedule?

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

4. Is Lombard liable to pay Mr. Shubrook's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

1. Mr. Shubrook is entitled to receive income replacement benefits in the weekly amount of $379.62 for the period from September 12, 2002 and ongoing.

2. Mr. Shubrook is entitled to interest as prescribed.

3. If the parties cannot resolve the issue of expenses within 30 days, I will hear submissions and determine the matter.

BACKGROUND:

Chet Shubrook left school when he was sixteen years of age, after partially completing Grade 10 in Hamilton, Ontario. He testified that when his father abandoned the family he was required to assist his mother in caring for his three siblings, as she was unable to cope on her own.

Mr. Shubrook joined the Canadian Armed Forces when he turned nineteen, and served for three years. After his discharge from the military he worked for Kingsbury Machine and Tool as a machine operator, whose task was to load and unload exhaust manifolds that weighed approximately 15 pounds each at the rate of approximately 1,000 per day. He continued his employment at Kingsbury until the company became insolvent and ceased operation. Mr. Shubrook went on to work in a series of other jobs requiring similar kinds of heavy physical labour. He worked as a punch press operator at BCL Magnetics and as a shift foreman at IBL Industries. He loaded 45 gallon barrels of liquid at Sun Chemicals, an ink processing facility. Then he moved on to cutting steel to length for customers at Summo Steel. He also worked from time to time at Three R's Recycling, filling in when they were short-handed.

In summary, Mr. Shubrook's early work career shows a consistent pattern, sustained over a long period of time, and it involved significant physical effort on his part.

Mr. Shubrook changed occupational directions when he went to work for Bell Net, installing outside telephone lines, after Bell Canada stopped offering this service. In this job he largely worked independently and covered a large territory that ranged from Niagara to Brantford. After about six months with this firm he started working as a cable installer in the Barrie area. He worked in this capacity until January 1997.

At that time, Mr. Shubrook was offered a job by Entourage, where we was employed at the time of the automobile accident on November 27, 1997. At Entourage, Mr. Shubrook worked in various capacities, from converting pay phones over to computerized formats to doing installations and repairs. He estimated that he spent about 60% of his time carrying and climbing ladders as he was usually required to access lines on telephone poles and the line connection points on buildings. The work by nature required him to bend, squat, sit, kneel, crawl and twist constantly. Most of Mr. Shubrook's work was of a residential nature, as he had not been trained to install the more complex commercial telephone systems. However, he did assist with wire pulling and general labour in commercial contexts.

On November 27, 1997, Mr. Shubrook had just completed a job in Waterdown, Ontario. While stopped to await an opportunity to make a turn his vehicle was impacted from behind. He doesn't recall much of the accident detail other than that his vehicle ended up quite a distance down the road from where he had been stopped. He was able to exit the vehicle and walked back to the intersection and saw the broken parts of his vehicle as well as the vehicle that had collided with him. He called into his employer to advise about the accident and also notified the police. He then waited for the police to arrive. Entourage later advised him that his vehicle was written off by the company after the accident.

Mr. Shubrook testified that he was dazed and confused after the accident. He had immediate headache and tightness in his neck and shoulders. He did not immediately seek medical treatment, but did take the rest of the day off at the suggestion of his employer. When he got home he laid down to rest and later that day a friend advised him to get checked at Henderson Hospital, which he did. He attended at his family physician's office a couple of days later and was prescribed pain medications and referred to physiotherapy. Physiotherapy did not seem to have any sustained benefits according to Mr. Shubrook, as its effects only seemed to last for a couple of hours after the treatments.

Mr. Shubrook's medical problems did not resolve quickly. He attempted to return to work but continued to experience sore and stiff neck and shoulders as well as headaches and some back pain. He also began to experience blackouts. When he reported these to WSIB he was told to go on modified duties. Mr. Shubrook stated that he experienced perhaps five to seven episodes of blackouts over the first two-year period after his accident.

His pain and discomfort progressively increased. Dr. W.C. Proctor, Mr. Shubrook's family physician, referred him to Dr. J.A. Pyper, an orthopaedic specialist. He underwent x-ray investigations as well as a CAT scan and was prescribed increasingly stronger pain medications. He was also referred to Dr. M. Kaminer to explore whether trigger point injections might help him.

Mr. Shubrook found that the new pain medications he was offered worked quickly, but they also produced severe nausea as a side effect. His physician changed the medications, but Mr. Shubrook found that the alternatives generally brought on the same side effects. He chose to stop taking the medications. The result was that he began to suffer from serious sleep disturbances due to the ongoing intense pain. Mr. Shubrook testified that pain would often awaken him from even deep sleep. Once awake, he was unable to get back to sleep due to the pain and hence was regularly tired and grouchy due to his lack of rest. His estimate was that he was sleeping only approximately two to three hours per day. His sleep was no longer restorative.

In an attempt to manage the pain Mr. Shubrook had steroids injected into his neck and shoulders. He explained that he understood that this procedure was intended to "lubricate the joints where his nerves were being pinched." Initially the steroid injections relieved his symptoms for approximately one week after they were administered. However, he could only undergo the injections once every three months.

While undergoing this therapy Mr. Shubrook was continuing to work, despite the pain he was experiencing, because he needed to earn an income. However, he testified that while he was driving, especially when he hit a pot hole or was on a bumpy road, the pain would recur. Driving was a significant element of his job. He described the pain as lightening-like, sharp shots of pain through his neck and down his spine. The pain was often followed by a severe headache. Mr. Shubrook stopped working in October 1998 when he began to experience the right side of his body going into severe spasm when he attempted to turn his body. He returned to Dr. Proctor who again prescribed different pain medication. Although the medication did not eliminate his pain, Mr. Shubrook tried to return to work in December 1998, primarily, as he testified, because he had no money for Christmas. However, after two weeks he had to quit, unable to work any longer with the pain which was becoming increasingly debilitating. From that point on Mr. Shubrook did not return to work, nor did he attempt to return to work, and that is the basis of his dispute with Lombard.

Mr. Shubrook underwent a continuing series of medical interventions to deal with his chronic pain. As a result of the findings of MRI studies in February 1998 he was referred to Dr. K. Reddy who discussed surgical options with him. Although he was advised that there was only a 50/50 chance that the surgery could relieve his problems, he decided to undergo it as he did not wish to live with the pain for the remainder of his life. Within a few days after the surgery, Mr. Shubrook reported being unable to move much at all and experiencing severe loss of use of both his arms and legs. He also had extreme headache pain, worse than he had ever experienced before. Initially he was advised that it was likely post-operative pain that would ultimately dissipate. However when the pain became unendurably intense he returned to the hospital. It was there that it was determined he had a collapsed disk. This required that he undergo further surgery for a disk fusion with a steel plate in September 1999.

The result of the fusion, according to Mr. Shubrook, was that he experienced approximately 30%-40% decrease in his pain symptoms. He testified that the pain was not as constant as it was prior to the surgery. However, he still had regular headaches, though they were no longer experienced as constantly pounding in the back of his neck.

Mr. Shubrook was again referred to physiotherapy for his neck, shoulders and back. At that point he was taking Tylenol #3 for pain as needed. He testified that he experienced nausea with the Tylenol and so he only took it when he was in extreme discomfort.

At that point in time Mr. Shubrook still hoped to try to return to work. However, his employer advised that they would not take him back until he was fully capable of returning to all of his pre-accident duties. He attempted a course of work hardening but could not continue in it. He also tried acupuncture only to find that his pain symptoms increased. Mr. Shubrook testified that his pain symptoms were magnified about tenfold after the work hardening experience. After that point in time Mr. Shubrook concluded that he could not even drive a vehicle safely any longer.

Mr. Shubrook continued to live a life dominated by pain. Events such as driving, walking, moving his arms too much, washing dishes, washing his hair, cooking and vacuuming all were identified as common triggers for severe headache and neck pain. Generally his bouts of pain last two to four hours at a time and are only relieved by lying down in a cool, dark environment with a wet towel padding the nape of his neck. He simply waits for the bouts of pain to pass. When asked by his counsel to quantify how often he experienced this sort of pain, he stated that it felt like a thousand times a day he would get an electric jolt to his neck. When asked if he really meant to say that, he confirmed that he did.

Given the protracted nature of Mr. Shubrook's pain he was referred to a chronic pain program directed by Dr. Khan in Hamilton, in October 2001. During the period of his treatment by Dr. Khan, Mr. Shubrook had facet joint injections, Botox injections and was given epidural steroids. Dr. Khan's approach was to aggressively treat Mr. Shubrook's pain with the hope of an outcome that Mr. Shubrook could regain some level of functionality in his life.

However, even these medical interventions did not ameliorate Mr. Shubrook's pain in any significant way. He found that the Botox did not provide him any relief. The epidural steroids were intended to benefit his lower back and improve the problems he was experiencing in walking, but had no perceived net benefit to Mr. Shubrook. The facet joint injections were to be administered to both sides of his neck. However, the pain from the injections to the left side of his neck was so severe, even compared to the pain Mr. Shubrook was already experiencing, that he asked that his right side not be done. Mr. Shubrook described himself as whimpering on the table during the procedure. He ultimately had the other side of his neck investigated only to learn that he was not, in fact, a good candidate for follow up rhizotomy² treatment.

At this point, Mr. Shubrook learned that there were few medical options left available for him. Dr. Khan then recommended that Mr. Shubrook try an intrathecal pain pump, basically as a last resort for pain control. This pump is a device surgically implanted subcutaneously which delivers a continuing dose of opiates directly to the spinal cord. Since the medication is delivered directly into the spinal fluid there would be no nausea associated with it. Although the payment for this device was originally a dispute to be determined in this arbitration, by the time the hearing commenced, Lombard had reconsidered its position and agreed to fund a one-year trial of the intrathecal pump for Mr. Shubrook.

Mr. Shubrook testified that, due to his long struggle to manage and control his pain, he was unable to return to work, and in fact has not actively sought to return to work because he believes that he could not be a reliable employee in any context. In his view, his intractable pain prevents him on most days from even getting up, preparing for and going to work, let alone functioning adequately on the job over any sustained period of time. Beyond this Mr. Shubrook stated that he does not believe that he can currently be retrained for any type of employment. His concentration and ability to focus on a task are seriously and regularly compromised due to the pain. In addition he experiences episodic vision problems and significant memory deficits. He has learned to make notes for most things in his life and uses post-it notes stuck to the mirror in his bathroom to remind himself of most appointments. Lack of sleep still continues to be problematic as he sleeps at most three hours during a night. When he awakens he most often feels exhausted. He requires naps two to three times daily, but when he tries to nap he does not always actually experience any rest or relaxation.

ANALYSIS

The issue in this arbitration is whether Mr. Shubrook meets the test for continuing income replacement benefits after 104 weeks of disability, as provided for in section 5 of the Schedule, which states:

5.(1) Subject to subsection (2), an income replacement benefit is payable during the period that the insured person suffers a substantial inability to perform the essential tasks of the employment in respect of which he or she qualifies for the benefit under section 4.

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

(a) for the first week of the disability;

(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;

Lombard's position is that, notwithstanding Mr. Shubrook's pain, which is undisputed, he does not suffer from a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

The meaning of "complete inability" was reviewed in of Terry and Wawanesa Mutual Insurance Company.³ There, Arbitrator Palmer stated:

It is not my sense of the test of paragraph 5(2)(b) that the meaning of "complete inability" is that the applicant has to suffer an inability to do more than 50 percent of the job,...Real world jobs should not be broken down into their component parts such that if an applicant is able to do a little more than half of any suitable job, that he should be found to be disentitled from receiving income replacement benefits (and an employer should be obliged to hire him for that job.) As Arbitrator Sampliner pointed out in Lombard/, a literal reading of total disability clauses has been rejected in many previous cases and a literal reading of "complete inability" would mean an insured would have to be unable to perform any function of any job to qualify.

Somehow the ability to engage in a reasonably suitable job, considered as a whole, including reasonable hours and productivity must be addressed. In my view, Mr. Terry has convincingly demonstrated in his attempt at a work trial that he is completely unable to engage in a sedentary job for which I find he was reasonably suited. He would be unable to consistently attend and sustain a reasonable number of hours of employment as a taxi dispatcher or any similar job. [p.14]

I agree with the arbitrator, and particularly emphasize that any assessment of this question must be holistic in nature. It is not appropriate to simply identify a discrete series of employment competencies that an individual may be able to demonstrate under artificial testing situations and then to cobble these together into a theorized ability to engage in employment.

This sort of analysis misses the whole dimension of employment being a living relationship between the employer and the employee. The Regulation talks about an ability to "engage in employment" not simply to perform discrete job tasks. In my view, to "engage in employment" is to participate actively in the work relationship over some reasonable period of time. In addition, the employee must be able to meet normal employer expectations. This has nothing to do with the issue of workplace accommodations which can often facilitate a disabled person's return to employment. Rather, I am referring to basic, common sense expectations, such as, that an employee will reliably show up for and remain at work, as well as be able to concentrate and focus sufficiently on the tasks at hand to do his or her work with some acceptable level of competence. No reasonable employer would expect anything less and no employee should expect to do any less.

It is fair to say that there are many situations where an individual may be unable to return to the type of employment he or she had prior to an accident, but is able to meaningfully engage in alternative employment which is suitable based on their education, training or experience. The problem in this case, and in other cases like it, is that Mr. Shubrook's experience of unremitting chronic pain prevents him from meaningfully engaging in any type of employment.

The Supreme Court of Canada has recently provided guidance on how adjudicators should approach issues of chronic pain. In Martin and Laseur v. Workers' Compensation Board of Nova Scotia,⁴ the court found that the very real needs of chronic pain patients often get dismissed in statutory compensation programs due to an unwarranted overemphasis on preventing potentially fraudulent claims. Although preventing fraud is important it cannot become the trump card that overrides meaningful response to the needs of those who truly suffer from chronic pain conditions. Although the court was dealing with work related injuries in its decision, the arguments apply analogously to the statutory automobile accident benefit scheme as provided in the Schedule.

Justice Gonthier observed that in situations dealing with mental disabilities there is often an unwarranted skepticism about the bona fides of claimants and claims. He says:

Most importantly, the medical reports introduced as evidence often mention the inaccurate negative assumptions towards chronic pain sufferers widely held by employers, compensation officials and the medical profession itself. They identify the correction of negative assumptions and attitudes of this kind as a significant step in improving treatment of chronic pain. The troubling comments made by some case workers in the Laseur file appear to betray such negative assumptions. Thus, statements that Ms. Laseur had "fallen into the usual chronic pain picture" and that "[t]his is basically a chronic pain problem, perhaps even a chronic pain syndrome although she seems to be a very pleasant individual with not the usual features of this type of problem" were clearly inappropriate and suggest that Ms. Laseur's claim may have been treated on the basis of presumed group characteristics rather than on its own merits. Finally, the medical experts recognize that chronic pain syndrome is partially psychological in nature, resulting as it does from many factors both physical and mental. This Court has consistently recognized that persons with mental disabilities have suffered considerable historical disadvantage and stereotypes. (par. 90)

Later in his judgement, he goes on to say:

...Although the medical evidence before us does point to early intervention and return to work as the most promising treatment for chronic pain, it also recognizes that, in many cases, even this approach will fail. It is an unfortunate reality that, despite the best available treatment, chronic pain frequently evolves into a permanent and debilitating condition. Yet under the Act and the FRP Regulations, injured workers who develop such permanent impairment as a result of chronic pain may be left with nothing: no medical aid, no permanent impairment or income replacement benefits, and no capacity to earn a living on their own. This cannot be consistent with the purpose of the Act or with the essential human dignity of these workers. (par. 97)

The implication of the Supreme Court's decision is that it is not morally appropriate or legally justifiable to stereotype individuals whose disabilities happen to be "less visible" than others. Even though pain is subjective, not directly perceivable by outside observers, or difficult to verify or quantify, it is nonetheless real. No one in pain doubts this; and at some point in our lives most of us will come to learn this lesson. In some cases, as Justice Gonthier notes, pain can be so real and pervasive that it can destroy one's ability to be self supporting. When responses to these situations trade on dismissiveness, stereotypes, and unwarranted generalizations, then we only compound the suffering of people and rob them of their human dignity. In Canada, The Charter of Rights and Freedoms as well as the provincial Human Rights Codes mandate that we not allow this to happen.

I find that Mr. Shubrook was a credible witness in his subjective reports of the pain symptoms he has endured since the accident. There was no evidence before me that challenged Mr. Shubrook's description of the difficult life he has lived since the accident. Causation, linking this pain back to the accident, is also not in issue here. His evidence-in-chief was clear and detailed and I did not detect any attempts on his part to exaggerate his evidence for my benefit. In his cross-examination, Mr. Shubrook was consistent in his views that there really were no currently viable options for him to function as a reliable employee in any conceivable employment relationship. That is the reason why he could not seek for or return to work, or meaningfully retrain for any employment, at least not until his pain was brought under better control.

Mr. Shubrook's evidence was supported by testimony from Dr. Larry Khan, a pain specialist in Hamilton. Dr. Khan is an accredited specialist in anaesthesiology and continues to work in this capacity at St. Joseph's Hospital in Hamilton. He also runs an independent pain management clinic along with two psychiatrists in Hamilton. Dr. Khan testified that he has taken specialized training in pain management in Australia. I accepted Dr. Khan as an expert to provide opinion evidence in the area of chronic pain and its medical management. In general, I found Dr. Khan to be a very helpful and credible witness. He thoroughly explained the regimen of treatment he had prescribed for Mr. Shubrook, and the reasons for each step he took. He was candid in his testimony when asked about another chronic pain program that was available to Mr. Shubrook and I accept his evidence that he conducts a medically based facility and that his clinical goal is to provide patients with whatever treatment options have been validated in the scientific literature in the hopes that they can improve their quality of life. Unlike his program, he advised that, from what he knew, the chronic pain program offered by Hamilton Health Sciences was more behavioural in its orientation, and focussed on developing coping skills. In his view, patients had a choice of the kind of therapy they wanted to explore. He offered aggressive medical interventions and believed that Mr. Shubrook had the right to choose that approach in dealing with his problems.

Dr. Khan testified that his referrals come from many sources: physiatrists, neurosurgeons, palliative care professionals, family physicians, lawyers, as well as other medical pain specialists. He further advised that his clinic provides medical interventions that other pain management programs often do not. Dr. Khan explained that he adopts the principles of evidence based medicine in the treatment he offers. He acknowledges that there are many treatments that are purported to assist in managing pain. The efficacy of some of these treatments is supported in the scientific literature. In many cases, though, there is no objective evidence that they work at all and he does not offer them. However, the reality is that his clinic deals with serious cases of chronic pain and he stated that, unless a possible surgical intervention had been missed in the course of a patient's treatment, by the time a patient arrives at his clinic door they generally have tried just about everything available to deal with their pain.

Dr. Khan outlined the history of his involvement with Mr. Shubrook. He took a thorough medical history and reviewed the notes from Mr. Shubrook's earlier treatments prepared by Dr. Proctor. He noted that Mr. Shubrook had undergone two spinal surgeries by the time he started treatment with him. He also integrated distraction tests into his examination of Mr. Shubrook. Dr. Khan testified that he has never known a patient to be able to "feign" such tests, and he took that to validate Mr. Shubrook's reported complaints along with various objective physical observations he made that were consistent with Mr. Shubrook's self reports.

Mr. Shubrook's treatment regimen started out with "conservative" measures. The progression went from Botox treatments, to epidural steroids, to cervical and lumbar facet joint diagnostic blocks. There was then a possibility of a facet joint rhizotomy if it turned out that Mr. Shubrook's pain was face joint generated. In addition, Mr. Shubrook was advised to participate in the psychiatric portion of the pain program conducted by his colleague at the clinic.

Mr. Shubrook was also prescribed a trial period of methadone. Dr. Khan testified that while opiate medications are not usually effective in treating neuropathic pain, nonetheless methadone has been shown to be useful in some cases. Mr. Shubrook's dosage of methadone was low. Although Mr. Shubrook reported that the methadone seemed to "take the edge off the pain, he suffered serious constipation and loss of libido as side effects. Dr. Khan pointed out that once Mr. Shubrook stopped taking the methadone, he returned the unused portion of the prescription. Interestingly, he was asked in cross-examination whether Mr. Shubrook might be a "drug seeking" individual who was addicted to the strong opiate medication he had been taking over time. Dr. Khan disagreed, stating that he had never experienced a drug addict returning any unused medication, even if it was not working. Although the medications Mr. Shubrook was taking were potent, Dr. Khan was completely satisfied that all Mr. Shubrook was seeking was relief from his pain. He was not aiming to get high.

As noted above, Mr. Shubrook did not tolerate the facet joint blocks well. He initially chose not to have the procedure done bilaterally. As Dr. Khan explained, the facet joint block is done while the patient is wide awake and no pain medication or sedative is administered as this would interfere with a determination of whether the pain was facet joint related. It is, by all accounts, a very uncomfortable procedure. Mr. Shubrook was unable to tolerate both sides being done on the same day. However, Dr. Khan encouraged Mr. Shubrook to take time to consider finishing the procedure on the other side, as he might be denying himself a very successful option for treating the pain with a rhizotomy if the results were positive for facet joint involvement. Mr. Shubrook did ultimately consent to finish the procedure, but the result was that he was not a candidate for a rhizotomy on the right side, the locus of his most severe pain, and so he elected not to undergo one for the less painful left side.

Dr. Khan testified that upon reaching the conclusion that a rhizotomy would not meaningfully improve Mr. Shubrook's condition, all conventional medical approaches had been exhausted. However, there was still an option to explore an intrathecal pain pump. Dr. Khan explained that when opiate medications are delivered orally, only approximately 1/300 of the dose may actually reach the spinal cord. In addition, there are often significant negative side effects to use of such medication. If an intrathecal pump is used, the dosage of the medication can therefore be reduced to about 1/100 to 1/300 of the normal oral dosage. This has the effect of drastically reducing the amount of the medication that a patient is exposed to over time as well as the elimination of many side effects.

The pump is a hockey puck sized device attached to a catheter that is threaded through the bones of the vertebral column directly into the spinal fluid. The pump has a capacity of about 18 ccs and can provide two to eight months of medication at a time. Generally the drugs administered through the pump in Canada are morphine, hydromorphone and Demerol. It can be programmed externally by the physician to regulate dosages and times the drug is administered. The device can be refilled by a needle inserted through the patient's skin and through a diaphragm on the device. The pump can run on internal batteries for up to six years. Dr. Khan testified that he has implanted approximately 20 such pumps while practising in Canada and between 20 and 40 during his training.

Dr. Khan testified that the pump is not used regularly, but only when all conservative measures and surgical treatments have been exhausted and the patient has unrelenting chronic pain. It is clearly an invasive medical procedure. The patient needs to undergo a trial period in hospital with the pump to determine if he or she will respond to the medications to be used. Patients who are candidates for this procedure must display a certain amount of consistency and compliance in their behaviour. Dr. Khan advised he also must satisfy himself that there is no untreated psychopathology or drug-seeking behaviour in the patient before implanting the pump. As stated above, he concluded that Mr. Shubrook satisfied these conditions. Typically this treatment option would not be offered until a patient had worked with Dr. Khan for at least a year or two, investigating more conventional treatments. As Dr. Khan stated, "we are married to that patient" once we install this device. He advised that there are no other physicians in the Hamilton area that offer this treatment to his knowledge. The pump is a permanent device and is only removed in cases of infection. No patient has ever requested the pump, once implanted, be removed.

The goal of the pump procedure is to improve the quality of life of the patient with intractable pain. Dr. Khan was very forthright in his testimony in stating that his goal is not directly to return anyone to work. He is not a rehabilitation counsellor. In fact, he stated that if his treatment goal with the chronic pain patients that he sees was to return them to work, he would "fail 99% of the time." On cross-examination, he opined that even if the pump was successful in offering some pain relief to Mr. Shubrook, he still doubted that he would ever be able to return to work. He did qualify his opinion by confirming that his specialty was not that of an occupational assessor. He simply was uncertain whether Mr. Shubrook would recover enough quality of life to be able to work on any consistent basis.

The intrathecal pain pump, according to Dr. Khan, is currently the end of the line for accepted medical interventions in chronic pain cases. If it does not work, Mr. Shubrook will simply have to live with his pain. He testified that he would not have offered it to Mr. Shubrook if he believed that there were any other options left to explore. Dr. Khan characterized his clinic as amounting to a quaternary care centre. He only deals with people who have exhausted all other modalities of treatment. Rehabilitation is not his goal as the patients he sees are usually so challenged by their pain that they cannot meaningfully consider rehabilitation, even if that is what they ultimately hope for. If his interventions are successful, "then" patients may be able to contemplate some form of rehabilitation.

Dr. Khan was questioned on cross-examination about his willingness to prescribe strong opiate medications and whether or not Mr. Shubrook's pain, especially his headaches, might be "medication rebound" in nature? His response was that there are different views within the medical community on whether there is such a condition as "medication rebound." Notwithstanding that debate however, he was treating pain, not the cause of headache, and Mr. Shubrook had not obtained relief from pain during the course of the exploration of its causes. In Dr. Khan's opinion, although Mr. Shubrook had been prescribed a large number of opiates, he did not see this as unusual or problematic. He advised that it is normal clinical practice to use "opiate rounds" where, if one drug is not responded to, then another "class" is tried, until something that works is identified. Fitting the right drug combination to a patient is largely trial and error. His testimony was that, basically, for someone with Mr. Shubrook's symptoms, the number of opiates he had tried was what would be expected in normal clinical practice. Dr. Khan did not believe that Mr. Shubrook was referred to him by Dr. Proctor because of concerns over substance abuse, but rather due to the fact that, after all these other drugs were tried and found to be ineffective, Mr. Shubrook needed other, more "interventionist", to use Dr. Khan's phrase, treatment options.

Mr. Shubrook also called at occupational therapist, Ms. Tara Emick, to provide evidence about his condition. Ms. Emick prepared an In-Home Assessment of Mr. Shubrook's needs and also attempted to complete a Vocational Employability Analysis. She intended this analysis to stretch over five days to provide a realistic picture of Mr. Shubrook's employment capabilities and restrictions. However, Mr. Shubrook was unable to return after the first day of testing due to reported pain. Her conclusions were that Mr. Shubrook's limitations were largely due to his intense pain and his inability to consistently maintain, even at the sedentary level Lombard thought he was capable of, his effort for more than one day.

On cross-examination, Ms. Emick was asked whether Mr. Shubrook could study to be retrained. She confirmed that she had encouraged Mr. Shubrook to look into taking an adult education course of some sort to keep busy as well as to participate in a home-based hobby activity. However, her conclusion, based on her experience with him and her observations of him in his home environment, was that he could at most take one course at a time as he did not have the ability to focus or concentrate enough to do more. She had doubts, however, that he could even be successful in such a limited effort. In her judgement, Mr. Shubrook was not employable or retrainable in any occupation.

The only witness called by Lombard was Patricia Gama-Pinto, the adjuster of Lombard's file. Ms. Gama-Pinto's evidence can be summarized by saying that she, on behalf of Lombard, does not dispute that Mr. Shubrook experienced very serious pain following this accident. She noted that Lombard approved payment for various medical treatments and interventions. Although they originally resisted paying for the intrathecal pump, her explanation was that, because it was so novel, she wanted a second opinion on its therapeutic value before approving it. As a result of a Med Rehab DAC report, Lombard is paying for the trial of the pump.

On cross-examination, Ms. Gama-Pinto was asked about surveillance that Lombard had conducted. Even though the surveillance was not introduced as evidence in the hearing, she acknowledged that basically it showed that on January 4, 5, 6, 9, 10, 11, 2002 Mr. Shubrook was not observed by the investigator retained by Lombard to be doing anything. In fact, the investigator's notes from January 11^th indicate that when Mr. Shubrook answered the door, he had to hold onto the door frame and clearly appeared to be in some significant discomfort. She acknowledged that the surveillance undertaken by Lombard provided no evidence to contradict Mr. Shubrook's claims.

Ms. Gama-Pinto testified in cross-examination that at some point in adjusting the file she formed the conclusion that Mr. Shubrook, although he was experiencing significant pain, was also "de-conditioned." On further questioning, she acknowledged that the Disability DAC assessment did not draw this specific conclusion but rather noted only that Mr. Shubrook was not working. This was Ms. Gama-Pinto's personal conclusion drawn from the information before her. She was asked what her definition of the term "de-conditioned" was and responded that it was "someone who is not doing anything." In her view, Mr. Shubrook was "de-conditioned" because he was not working and he was not engaged in any form of work hardening program. In Ms. Gama-Pinto's judgement, Mr. Shubrook "should" be able to do something, not just sit around all day. Ms. Gama-Pinto, based on her evidence, did not apparently direct her mind to seriously inquiring "why" Mr. Shubrook was not working or going to physiotherapy. Based on her definition of being "de-conditioned", I can only infer that she thought that such information was irrelevant.

Ms. Gama-Pinto was also asked whether she was aware that Mr. Shubrook had been approved for Canada Pension Plan benefits. She stated that she had recently become aware that he was approved for such benefits in May 2003, retroactive to June 2000. She was then asked if she was aware of the eligibility criteria for the Canada Pension Plan as being "severe and prolonged disability." She responded that she was not aware of that specific test of disability entitlement. However, when asked whether, having now learned that Mr. Shubrook had been approved for Canada Pension benefits, it was relevant to her reassessment of whether he can work now, she dismissed the information as not being significant for her deliberations.

Ms. Gama-Pinto was asked to comment on the Disability DAC's conclusion that Mr. Shubrook demonstrated "borderline" sitting tolerance needed to be a dispatcher and "borderline" walking tolerance needed to be a survey interviewer, two occupations the Disability DAC thought he was reasonably able to engage in and that were suitable for him. She stated that she interpreted the DAC report to mean that "borderline" was good enough.

Finally, Ms. Gama-Pinto was asked whether she believed that Mr. Shubrook’s ability to concentrate and focus were important factors in assessing his ability to sustain employment. She confirmed that these were important aspects of employment. She also confirmed that in her view severe pain, constant headaches and side effects of strong medications might potentially affect one’s concentration and focus.

CONCLUSION

Having thus summarized the evidence at the hearing, I find that Mr. Shubrook has met his burden of proof to establish, on the balance of probabilities, that he is disabled from engaging in any employment for which he is reasonably suited by education, training or experience. Beyond this, I find that Mr. Shubrook has demonstrated almost beyond a reasonable doubt - which is a standard of proof well beyond the required balance of probabilities - that he is not capable of being employed in any capacity in his current condition.

Lombard’s position in this arbitration is difficult to understand in the light of the evidence presented. There was no significant dispute in this arbitration about Mr. Shubrook’s symptomatology. There was no evidence to dispute that he suffers from unremitting and intractable pain. The chronicity of his pain is unquestioned. As noted above, the Supreme Court of Canada has made it abundantly clear that chronic pain patients must be assessed on an individual basis and that adjudicators, and those who administer statutory benefit programs, must guarantee that the fundamental human dignity of these patients be protected and promoted.

Having heard Mr. Shubrook's evidence and the supporting testimony of Dr. Khan and Ms. Emick, I am inexorably led to conclude that there could have been no reasonable doubt in Lombard's mind that Mr. Shubrook was incapable of sustaining any kind of meaningful employment. Lombard’s argument, as best I can understand it, was that Mr. Shubrook was either a drug addict or, in the alternative, was suffering from "rebound headaches" caused by his physicians willingness to prescribe him increasingly strong narcotic medications. Based on the evidence before me I reject both of these views. I accept Dr. Khan's evidence that he satisfied himself that Mr. Shubrook was not a "drug seeking" individual. Dr. Khan's professional credentials and expertise provide him with the ability to identify such problems and I accept that he addressed his mind to the issue and concluded that Mr. Shubrook was not feigning symptoms in order to obtain drugs. I also accept Dr. Khan’s testimony that, from his professional point of view, there was nothing unusual or problematic about the number or amount of opiate medications Mr. Shubrook had used given his symptoms.

With regard to the Disability DAC’s identification of various jobs that Mr. Shubrook was suitable to do and that required only sedentary levels of exertion, I find that they do not address the real issue here. Mr. Shubrook did not dispute that he may have the technical competencies to do some of these jobs, and I suspect that he can do some of them. The problem, as Dr. Khan and Ms. Emick pointed out in their testimony, is that Mr. Shubrook’s pain is so overwhelming and debilitating at the present time that his capacity to be a reliable and competent employee is strongly in doubt. Given that Lombard did not offer any evidence to contradict Mr. Shubrook’s pain symptoms, I find that he has met the burden of proof to show that he cannot meaningfully work in any of the capacities the DAC identified. I further find that retraining for a job is also not a realistic option for him while his pain continues to dominate his life as it does now.

In further support of my conclusions I want to observe that Ms. Gama-Pinto’s evidence did not support Lombard’s case in any way. She was candid in admitting that she had limited training in assessing this kind of case. That being said, I would have expected a reasonable adjuster in her situation to be much more cautious in drawing the inferences she did regarding Mr. Shubrook. The result of her approach was that she fell into the trap that the Supreme Court of Canada has now identified and censured. She ended up stereotyping Mr. Shubrook. Her conclusion that he was "de-conditioned" was completely uninformed and based on unwarranted assumptions. She had no expertise upon which to found such an inference and she acknowledged that she was not relying on any expert opinion that concluded this. Nonetheless, it was the basis for her denying Mr. Shubrook’s claim for benefits. This was completely unreasonable in my view.

Mr. Shubrook’s testimony about his longstanding, overwhelming, intractable pain was so consistent and compelling that I have difficulty understanding what basis Lombard had for treating his benefit claim the way they have. The fact that they denied his request for funding of the intrathecal pump and then later acknowledged that it was appropriate is also troubling. Although Lombard certainly has the right to have a DAC review any such treatment, the evidence here leads me to conclude that the stereotyping of chronic pain patients may have had a role to play in that decision as well.

During the hearing Mr. Aird advised me that Mr. Shubrook was withdrawing his claim for a special award. I respect that decision. However, I note that, based on the evidence I heard, I considered whether to raise the issue myself. I find that I do not have sufficient evidence before me to conclude that Lombard unreasonably delayed payments to Mr. Shubrook. However, Lombard’s conduct does raise concerns.

As a result I find that Mr. Shubrook is entitled to income replacement benefits at the weekly rate of $379.62 for the period from September 12, 2002 and ongoing, along with interest as prescribed.

EXPENSES:

No submissions were made with regard to expenses. I encourage the parties to attempt to resolve this between themselves. In the event that this cannot be done within the next 30 days I will determine the matter after submissions are made.

November 26, 2004

Robert A. Kominar

Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 175

FSCO A03-000361

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CHETSHUBROOK

Applicant

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. Lombard shall pay Mr. Shubrook income replacement benefits in the weekly amount of $379.62 for the period from September 12, 2002 and ongoing, along with interest as prescribed under subsection 46(2) of the Schedule.

2. If the parties cannot resolve the issue of expenses within 30 days, I will hear submissions and determine the matter.

November 26, 2004

Robert A. Kominar

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The rhizotomy procedure involves using a needle to place a small electrode adjacent to the facet under x-ray guidance. An electric current is then used to cauterize the spinal nerves in the facet joints. The procedure is used in cases of intractable pain.
3. 3(FSCO A00-000017, July 12, 2001)
4. 4Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur [2003] 2. S.C.R. 504.