Neutral Citation: 2005 ONFSCDRS 1

FSCO A02-000780

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

K

Applicant

and

LIBERTY INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

William J. Renahan

Heard:

September 13, 14, 15, 16 and 20, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received up to October 28, 2004.

Appearances:

Albert Conforzi for Mr. K

Wafik Abadir for Liberty Insurance Company of Canada

Issues:

The Applicant, Mr. K, was injured in a motor vehicle accident on November 6, 2000. He applied for and received statutory accident benefits from Liberty Insurance Company of Canada ("Liberty"), payable under the Schedule.¹ Liberty terminated weekly income replacement benefits on February 1, 2001 and refused to pay for certain medical treatments and assessments. The parties were unable to resolve their disputes through mediation, and Mr. K 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. K entitled to income replacement benefits pursuant to section 4 of the Schedule after February 1, 2001?

2. Is Mr. K entitled to $2,059 pursuant to section 14 of the Schedule for treatment at Pain Rehabilitation Clinic?

3. Is Mr. K entitled to $12,600 pursuant to section 24 of the Schedule for various assessments, including psychological, functional, physiatry and in-home.

4. Is Mr. K entitled to interest pursuant to section 46 of the Schedule?

5. Is Mr. K entitled to a special award pursuant to section 282(10) of the Insurance Act?

Result:

1. Mr. K is entitled to income replacement benefits from February 1, 2001 to August 28, 2001, together with interest calculated according to section 46 of the Schedule?

2. Mr. K is not entitled to $2,059 for treatment at Pain Rehabilitation Clinic.

3. Mr. K is entitled to $875 for a functional capacity evaluation performed by Rosemount, together with interest calculated according to section 46 of the Schedule?

4. Mr. K is not entitled to a special award.

EVIDENCE AND ANALYSIS

I heard conflicting evidence as to how the motor vehicle accident of November 6, 2000 occurred, and the parties agreed that it was not necessary for me to make a finding. It is sufficient to say that Mr. K was crossing the road when he came into contact with an automobile on the roadway. Mr. K struck his head and knees and was taken to hospital by ambulance where he was examined and released the same day on instructions to follow a head injury routine. Liberty paid income replacement benefits until February 1, 2001 when it learned that Mr. K was hospitalized with a psychiatric condition from which he had suffered for over ten years.

Mr. K admitted that he had periods of disability before the accident due to his psychiatric condition. However, he argued that either his condition was aggravated by the motor vehicle accident or that he suffered a head injury which has caused cognitive impairment. He claims that his brain injury has affected his concentration and memory. Some doctors support that claim. He also argued that he suffered physical injuries which prevented him from returning to work.

Liberty argued any disability was due to Mr. K's pre-existing psychiatric condition.

Background:

Mr. K is now 34 years old. He was raised in a small town in British Columbia. He finished grade 12. He was first hospitalized for his psychiatric condition in 1989 when he was 19. In the ten years before the accident he was hospitalized seven times, for periods usually from about one to three months. His longest hospitalization was for a little more than four months. Hospitalizations were usually followed by stays in group homes and then independent living. Mr. K had several manual jobs in such areas as forestry and fishing between periods of hospitalization. I heard evidence that he postponed going on a disability pension in British Columbia because he wanted to work. He was receiving a disability pension in British Columbia when he left for Ontario in 1999. He left the few supports he had in British Columbia in an attempt to make a fresh start in Ontario. He testified that he had hoped his last hospitalization in British Columbia was his last.

On arrival in Ontario in 1999, he rented a room in a rooming house owned by George Hucal. Mr. Hucal operated a car detailing business in Mississauga. Mr. Hucal cleaned cars for five or six automobile dealers and he hired Mr. K to clean cars at $25 per car.

It took Mr. K about two hours to clean a car and he cleaned four or five a day. The work involved a lot of bending, squatting and crouching in and around the vehicle to clean, vacuum, shampoo and polish it. Mr. Hucal said that even a healthy person had to stretch occasionally to relieve back ache. Mr. K said that the job was wearing him down physically and he planned to find another job. At the time of the accident, Mr. K was a trusted and valued employee. Mr. K worked at that job for 11 months up until the time of the accident.

Mr. K's motivation to work at the time of the accident was not seriously in issue. The main issue is whether the injuries Mr. K suffered in the motor vehicle accident significantly contributed to his disability.

I received in evidence many hospital records going back to 1989. As well, three psychiatrists testified. Dr. John O'Riordan assessed Mr. K in December 2001 as part of a disability assessment at a Designated Assessment Centre ("DAC"). Dr. Stanley Debow assessed Mr. K in August 2001 at the request of Liberty. Dr. Susan Finch saw Mr. K both in British Columbia and in Ontario.

Ann Pala witnessed the accident and she testified about Mr. K's presentation at the accident scene. George Hucal also testified.

It is necessary to review Mr. K's psychiatric history to determine whether his complaints are due to his psychiatric illness or were aggravated or caused by the blow to the head he suffered in the motor vehicle accident.

Psychiatric diagnosis:

Psychiatry is not an exact science and Mr. K has had several psychiatric diagnoses since 1989. In a psychological assessment in May 2002, Dr. John VanDeursen said that various diagnoses are often seen in similar circumstances. The consensus of medical opinion today is that Mr. K suffers from schizoaffective disorder. Dr. Finch testified that a person with schizoaffective disorder often has symptoms of both schizophrenia and bipolar disorder, and that these patients have a decline of function over time and do not come back to baseline. She testified that it is only possible to outgrow a diagnosis of schizoaffective disorder if you have been misdiagnosed. Dr. O'Riordan testified that schizoaffective disorder is a term to describe a difficult group of patients who are not classically schizophrenic or bipolar. Such patients present with a lot of symptoms of schizophrenia. Positive symptoms of schizophrenia include delusion and hallucinations. Negative symptoms include poverty of affect, poverty of thought, loss of will and motivation. As well, such patients have symptoms of a mood disorder, mania or depression, or both. He testified, that most people who suffer from schizophrenia show a decline in presentation over time. Those who suffer from bipolar disorder and schizoaffective disorder have episodes of symptoms followed by normal periods. Dr. Debow testified that there are many types of schizophrenia with many types of symptoms.

Psychiatrists prescribe drugs to treat psychotic symptoms of schizophrenia and mood disorder symptoms of bipolar disorder. Some drugs treat both types of disorders. The psychiatric opinion in general was that after two psychotic episodes, a patient should stay on the medications for life.

Like many patients, Mr. K suffered serious side effects from the medications. Prior to the accident, against the advice of his psychiatrist, and like many patients, Mr. K stopped taking medications as soon as he was not supervised and he lived symptom free for a year to a year and half until the next episode.

Mr. K's evidence of cognitive disability caused by the motor vehicle accident:

Mr. K testified over two days. He was very slow to respond to questions. At times it was not clear whether he was going to answer the question. At one point his counsel said "stay with us Mr. K." He spoke clearly but softly. At times he appeared dopey, tired or confused. At times he looked down at the desk and did not respond. A few times he smiled to himself. Once he closed his eyes and appeared tranquil. At other times he appeared, strained, uncomfortable or sad.

He said that although most of his doctors recommended that he take the prescribed medication after he left hospital, he didn't take it and he was fine for a couple of years between episodes of his illness. He testified that since the accident the symptoms of his illness have increased, and that his memory and concentration have deteriorated and that now he has to take the prescribed medication outside of hospital because he is afraid of what will happen if he does not. He testified that since the accident, he has episodes every six months and the number of hospitalizations have increased.

As an example of his decreased memory and concentration, Mr. K said that immediately after the accident he noticed difficulty following television programmes and remembering what he saw. He said that after the accident he was like a vegetable in front of the television. He said that he did not have problems following television before the accident. He did not give any other examples to show how his concentration has deteriorated since the motor vehicle accident. This one example of his inability to concentrate was something that Mr. K complained about prior to the motor vehicle accident. A nurse's note from May 1998 indicated that Mr. K's concentration remained poor and that he was unable to sit and watch television for any length of time. And, in June 1999, another nurse noted that Mr. K was unable to sit and watch a movie.

Mr. K gave no example of how his memory has deteriorated, however, in December 2000, Dr. Tory Hoff, a psychologist, noted that Mr. K wrote things down, such as appointments, to compensate for his memory problems. Again, this was a solution to a problem which was noted before the accident. During his last hospitalization in British Columbia, Mr. K asked his doctor for a written list of rules he should follow in order to prevent his transfer to a more secure institution.

The pre-accident medical documentation contains several references to Mr. K's lack of insight about his illness. In October 1989, his psychiatrist at that time wrote:

[Mr. K] did answer my questions but could go off in tangents and basically he stated over and over again, "you've got to help me man, with these problems", (he was referring to the side effect problems). I talked to him about the diagnosis of schizophrenia as being a possibility and his father seemed to understand but he did not. [Mr. K] therefore really had no insight, did not understand why he had been away at Riverside. He was smiling inappropriately but he stated that he really did not want to smile, (this might have been a side effect that I have seldom seen).

Throughout the ten years of pre-accident medical records in evidence, I found numerous references to Mr. K's impaired concentration and memory. The most common expression was "disorganized thought." I also found many references throughout to Mr. K's lack of insight into his illness.

After the accident, several medical practitioners continued to find that Mr. K did not have insight into his illness. Although Mr. K testified, and consistently reported to others from the time of the accident, that his concentration and memory were worse after the accident, I cannot see how his post-accident complaints of memory and concentration problems are different from the memory and concentration complaints recorded in his pre-accident medical records.

At the hearing, Mr. K tended to minimize his pre-accident psychiatric problems. He repeated that they were relatively short and then he was fine for up to three years. The records indicate that from the age of 19 he was hospitalized about every year and a half for usually more than two months at a time. He testified that he was on social assistance because he could not find work when the evidence was that he was on a disability pension.

I did not find Mr. K's evidence of memory and concentration problems reliable and, therefore, I do not accept, by itself, Mr. K's assertions that the accident aggravated his concentration and memory difficulties.

Several experts offered opinion evidence as to how the accident may have affected Mr. K's ability to concentrate and remember. To put these opinions in context and in order to assess the reliability of these opinions, it is necessary to discuss in greater detail the evidence about Mr. K's pre-accident condition.

Schizoaffective disorder:

I did not find in one place a comprehensive description of how the illness progressed during a typical "episode." I referred to all the diagnostic criteria of schizoaffective disorder which I heard in evidence, above, under the heading "Psychiatric diagnosis." However, I heard no evidence that this list was exhaustive. As well, different patients may have additional symptoms. For example, Dr. Finch testified that Mr. K dismantled things during an episode of his illness. I found several notes in the pre-accident records of Mr. K dismantling plumbing and electrical fixtures and beds. The treatment for this symptom was to place him in a room which contained nothing he could dismantle.

Nor did I hear clear evidence as to how the illness progressed in Mr. K's case. The witnesses referred to "episodes" and Mr. Conforzi used the term "florid" to describe when the episode was full blown. However, it was not clear how long the florid period lasted and what happened to Mr. K before and after the florid period. I find this important, because I have questions as to what condition Mr. K was in when the various experts examined him. For example, Dr. O'Riordan saw Mr. K on December 5, 2001, 19 days before Mr. K was hospitalized after attempting to take his life by slashing his wrist. The obvious question is whether Mr. K was suffering from his illness when Dr. O'Riordan assessed him. Similarly, Dr. Finch testified that when she assessed Mr. K in June 2004, she first wanted to determine whether he was at a new baseline or in the midst of an episode.

Another issue concerning Mr. K's condition when he was assessed by the various experts was what medications he was on when he was assessed, and what, if any, effect these medications had on the results of the assessment. I will deal with the evidence concerning the sedating effects of some medications later under the heading "Medications."

Onset of the episode of illness

Mr. K found it difficult to describe the symptoms that lead to his hospital admissions either at this hearing or to the various doctors who assessed him. The only sign he could remember about the onset of an episode was not wanting to work and not being able to sleep.

The clearest evidence that the onset of the illness was not sudden and without warning, was a hospital note that Mr. K requested admission to hospital on July 7, 2002 because he was "unable to sleep or cope" and that he had presented himself to the emergency department two days earlier but had left because it was too busy.

Most admissions were involuntary. In British Columbia, Mr. K's family doctor might certify under the provincial mental health legislation that Mr. K was a danger to himself or others. Either Mr. K or a family member would bring Mr. K to the attention of his family doctor. At other times, people would alert the police that Mr. K was trying to engage them in bizarre conversations, and the police would take Mr. K to the hospital.

Mr. Hucal testified that a couple of weeks after the accident, roomers in his house started to complain that Mr. K was turning off the heat and putting cigarette butts in the tank behind the toilet and leaving the stove on. Mr. Hucal testified that he was thinking of asking Mr. K to leave when he heard from the police that they had picked Mr. K up at a car dealership in Hamilton, where he had tried to trade his old truck in for a new one, and taken him to hospital.

Dr. Finch testified that Mr. K often took more illegal drugs at the onset of his illness. He did not sleep, eat or take care of his personal hygiene. He became more disorganized and dismantled things.

When Dr. Hoff assessed Mr. K on December 23, 2000 before he or anyone else in Ontario was aware of Mr. K's psychiatric history, he reported that Mr. K was not eating and that his house mates had told him that he was acting "different and strange."

Mr. K was hospitalized on January 31, 2001, about three months after the accident. Mr. K started showing symptoms of schizoaffective disorder shortly after the accident, according to what Mr. Hucal said, and according to what Mr. K reported to Dr. Hoff. I find therefore that Mr. K could start to experience symptoms of schizoaffective disorder, two to three months before the episode became florid and required hospitalization.

End of the episode of illness

After discharge from hospital, Mr. K usually went to a half-way house which housed other patients with mental illness. The staff supervised the patients mostly by making sure they took their medications and were stable. Patients usually worked in a sheltered environment. Dr. Finch testified that most patients stay several months.

Therefore, I find that the periods of hospitalization were preceded by a few months of symptoms of disorganized thought leading up to the hospitalization and followed by several months of supervision.

Hospitalizations

Generally, by the time Mr. K got to hospital he had stopped eating and sleeping and caring for his personal hygiene. An admission note in December 1996 records:

Called 911 complaining of abdominal pain and not being able to manage on his own. He had not eaten for two days. On admission he was restless, disorganized and struggling to keep control, unable to answer questions. Thoughts were rambling and disjointed and speeded with no logical progression.

An admission note in March 1998 records:

Requested admission. He relates feeling scared and paranoid with hearing voices. Not slept for two days.

Throughout the notes are references to slowed speech, poor memory, impaired concentration, little interest in structured activities and routine and poor insight into his illness. I also found several references to sedation:

At one point the patient was quite sedated for a week or so.

The following day was the worst day of his admission with increasing agitation despite significant sedation.

During his hospitalizations, Mr. K was free to walk around the hospital grounds unless he was dismantling hospital equipment or plugging toilets. If the staff could not stop him from dismantling equipment, they put him in a room without furniture or transferred him to a more secure facility. Mr. K was never physically restrained.

Team conference notes prior to discharge generally referred to Mr. K's ability to concentrate. For example:

At discharge his ability to follow and complete tasks was much improved;

His concentration is good. Is ready for discharge.

Dr. Finch testified that Mr. K's mood disorder was more often expressed as manic behaviour rather than depressive behaviour.

Medications

Mr. K was intolerant to the traditional antipsychotic medications used to treat the schizophrenic like symptoms of the illness. He suffered Parkinsonian-like symptoms, sometimes extreme. As well, he was intolerant to the medications used to treat the side effects. The medications used to treat the side effects of the antipsychotic medications caused urinary retention. Dr. Finch testified that Mr. K was also intolerant to the mood stabilizers used to treat the manic depressive-like symptoms of his illness. Dr. Finch said that Mr. K was particularly sensitive to medications. One hospital note from 1995 refers to Mr. K being sedated for a week or so. In a note in 1997, a nurse noted that Mr. K looked over sedated. In 1989, Mr. K's treating psychiatrist recorded Mr. K saying with respect to the side effects: "you've got to help me man, with these problems."

Tab 70 of Exhibit 10 includes computer printout descriptions of some of the medications Mr. K took. One possible side effect of the antipsychotic risperidone² was dizziness and drowsiness. Risperidone may increase the effects of other drugs that cause drowsiness, including pain relievers and muscle relaxants. Mr. K also took lorazepam which is used to relieve anxiety, nervousness, tension and insomnia. Again, it too may increase the effects of other drugs that cause drowsiness, including pain relievers and muscle relaxants.

The evidence is clear, that prior to the accident, Mr. K's doctors prescribed antipsychotic and mood stabilizer medications which Mr. K was supposed to take for the rest of his life and that Mr. K stopped taking as soon as he could. The evidence is not clear what medications Mr. K took after the accident and when he took them. He testified that he was afraid to go off medications after the accident because the accident had made his illness worse. However, he was not taking any medications when he saw Dr. Debow in August 2001 or prior to his hospitalizations in December 2001 and July 2002. The most recent clear documentary evidence of when Mr. K was on medications after the accident was at the medical rehabilitation DAC assessment in July 2003 when he was taking Mobicox, lorazepam, risperidone and Flexeril.

I have to determine whether I should consider medications as a possible explanation for Mr. K's presentation to the various assessors.

Dr. Finch testified that it was possible, but not likely, that the medications Mr. K took would affect speech, memory and cognitive function. Dr. O'Riordan testified that certain medication could contribute to dampening by reducing alertness and the ability to think. He said that risperidone is not usually sedating and less likely to contribute to cognitive impairment. Dr. Debow said that risperidone could affect cognitive ability. Dr. John VanDeursen is a psychologist who saw Mr. K in April 2002. He reported that Mr. K experienced cognitive impairments following a closed head injury but that many of his symptoms were also consistent with "symptoms that can potentially follow from major mental illness and even from psycho tropic medications." Dr. John Gilman is a neuropsychologist who assessed Mr. K in February 2003. He reported that his test scores were consistent with the "global suppression of all scores by psychiatric factors, the related use of medications and pain complaints."

Mr. K testified that he was now on medications, although he was not clear what he was taking. I have earlier noted the manner in which he testified. Ms. Pala commented on Mr. K's manner of speech at the accident scene, but she did not say that it was slow. Nor did the ambulance report or emergency records refer to slowed speech. The first indication of slowed speech is the medical rehabilitation DAC assessment report in July 2003 in which the psychological assessor noted that Mr. K's speech was slow and he was slow to respond to questions. Mr. K was on medications at this time. Mr. K was also on medications when Dr. Finch assessed him in June 2004. She noted that Mr. K's speech and response time were unusually slow. When Dr. Gilman assessed Mr. K, he noted Mr. K was very slow in responding. Again, Mr. K was on medication at this time.

Dr. Finch testified that Mr. K was more likely to be manic when suffering from an episode, in which case his speech was fast. All the pre-accident reports of Mr. K's slow speech and response times were made at a time when Mr. K was taking medications which might cause sedation. Mr. K's slow speech and response times were so unusual, that I find that if Mr. K had spoken in this manner at the accident scene or at the emergency ward of the hospital, someone would have noted it, and no one did. All of the post-accident references to slow speech and response time are made when Mr. K was on medications. I found no reference to slow speech when Mr. K was not on medications. Dr. Finch said that Mr. K was intolerant to the medications used to treat his illness. I found several references to his sensitivity to these medications. I therefore find that Mr. K's manner of testimony was not due to cognitive impairment. Rather, his slow speech and slow responsiveness is a side effect of the medications he is on now.

I therefore have to consider whether the side effects of the medicine he took affected the results of the assessments he underwent. As well, since I have found that the symptoms of his illness preceded and followed the florid episodes of his illness by as much as two months, I also have to consider whether the symptoms of his illness affected the results of the assessments he underwent.

Another consideration is a history of drug abuse, including the use of heroin and cocaine. I found several references to the use of marijuana, including nursing notes that he had marijuana in hospital. Mr. K denied that he uses drugs now.

I consider the events and assessments following the accident with these considerations in mind.

Motor vehicle accident November 6, 2000:

Immediately after the accident, Ms. Ana Pala saw Mr. K crawl to the sidewalk where he sat holding his head. He tried to crawl back onto the road to retrieve his hat, but bystanders stopped him. Several times he said "hit and run," even after the driver who hit him was introduced to him. His Glasgow Coma Scale was 15. Mr. K was released from the emergency department after three hours with a head injury routine. On balance, I find that Mr. K did not suffer a loss of consciousness. He was not on medications at the time. I heard no evidence that Mr. K missed any time from work prior to the accident or any other evidence or argument that Mr. K was suffering from his illness in the days preceding the motor vehicle accident.

Events leading up to hospitalization on January 31, 2001:

I accept Mr. Hucal's evidence and the report of Dr. Hoff that Mr. K was not eating and was acting strangely a few weeks following the accident. I find that he was in the early stages of a schizoaffective episode.

The psychiatric evidence was consistent that a specific stressor can trigger an episode and that emotional support is important in avoiding episodes. A social worker reported that Mr. K had no supports in Ontario except for his lawyer. Mr. K had left the few supports he had in British Columbia in an attempt to find a more normal life. He had found work and was unable to return to that work immediately following the accident. I heard no evidence of signs of schizoaffective disorder immediately before the accident. Mr. K started to show signs of schizoaffective disorder within weeks of the accident. Mr. K's last hospitalization ended one year and two months earlier on August 26, 1999.

Based on his history of hospitalizations, Mr. K was getting close to another hospitalization. However, if specific stressors can trigger an episode, it is likely that the trauma surrounding the accident and the inability to return to work immediately after the accident, at a time when Mr. K had no social support, likely made a significant contribution to the onset of his illness. I find that the symptoms of disorganized thought and inability to control himself gradually increased over three months until he came to the attention of the police in Hamilton. I therefore find the motor vehicle accident triggered the onset of a schizoaffective episode and significantly contributed to Mr. K's inability to perform the essential tasks of his employment at least until his discharge from hospital on May 28, 2001.

Although, I heard no evidence that Mr. K went to a half-way house after his discharge from hospital, Dr. Finch testified that Mr. K would live in a half-way house for several months following his discharge from hospital. I therefore find that the trauma of the motor vehicle accident and loss of employment significantly contributed to an episode of schizoaffective disorder which disabled Mr. K from working for several months, until August 28, 2001.

Medical assessments and opinion:

The balance of the evidence on disability due to cognitive impairment or an exacerbation of Mr. K's mental illness due to the motor vehicle accident is mostly medical opinion. I examine the medical opinion evidence taking into particular account how each assessment deals with Mr. K's medical history, his psychiatric condition at the time of the assessment and the side effects of any medication Mr. K was taking at the time of the assessment.

Dr. Stanley Debow

Dr. Debow assessed Mr. K for Liberty in August 2001. I do not place much weight on his opinion that Mr. K was not disabled from a psychiatric point of view. Under cross-examination Dr. Debow displayed a determination not to say anything that might help Mr. K establish disability. He qualified answers which did not require qualification, he refused to make concessions which were within the realm of possibility and he argued and acted as an advocate for Liberty. For example, it took considerable cross-examination before Dr. Debow conceded without qualification that a mild brain injury might affect a person's cognitive function.

Dr. John O'Riordan

When Dr. O'Riordan saw Mr. K on December 5, 2001, as part of a disability assessment at a DAC, the only medication Mr. K was taking was an anti-inflammatory. I found no reference to the slow speech and response time which others noted when Mr. K was on antipsychotic and mood stabilizer medications. Mr. K complained of memory and concentration problems. He did very poorly on the mini mental status exam, a gross screen for cognitive impairment. At that time, Dr. O'Riordan thought Mr. K had residual symptoms of his psychiatric illness. Mr. K attempted to take his own life a few weeks later on December 24th and was admitted to hospital for 20 days. In view of my finding that the florid episode of Mr. K's illness was preceded by a few months of symptoms, it is likely that the poor results on the mini mental status exam were due to Mr. K's mental illness. However, this does not rule out the possibility, that the results are evidence of cognitive impairment.

Dr. O'Riordan testified that a person with schizoaffective disorder could be more vulnerable to the effects of a head injury.

Dr. Thomas John

Dr. Thomas John is a physiatrist who assessed Mr. K on March 25, 2002. This assessment is the first evidence that Mr. K was now taking lorazepam, risperidone and Mobicox. Dr. John deferred comments regarding Mr. K's psychological and cognitive status and did not make any mention of slow speech or response time. He noted that Mr. K cooperated with the examination and gave a consistent effort.

Dr. John VanDeursen

Dr. John VanDeursen is a psychologist who assessed Mr. K on two occasions in April 2002. He does not indicate who commissioned the assessment. Mr. K was taking lorazepam, valproic acid and risperidone, which Dr. VanDeursen described as psycho tropic medications, and Mobicox, which he described as possibly for pain. He described Mr. K's affect "as consistently blunted through the appointments, showed little range of affect." "He tended to respond appropriately, but, as noted above, frequently in a way that was somewhat vague, filled with significant gaps and hesitant... He was observed on a number of instances to suddenly lose track of what he was attempting to talk about." He found that Mr. K was extremely depressed and anxious and convinced that he was disabled by a brain injury. In his opinion, Mr. K was at significant risk of suicide. Dr. VanDeursen expressed a great deal of doubt about the cause of Mr. K's difficulties and the need for more information and testing. For example, it was not clear to him whether test responses to drug use referred solely to illicit drugs or Mr. K's complicated history of psycho tropic medication. He wrote: "If test results are correct respecting possible continued substance abuse, then it is likely that psychopathological phenomena such as concentration problems, anxiety and depression follow from abuse patterns."

Dr. VanDeursen commented that previous assessors paid little attention to changes in Mr. K's functioning level pre and post accident and then concluded that the motor vehicle accident had contributed substantially to a marked change in functioning as "evidenced by Mr. K." He came to this conclusion on his finding that Mr. K had not returned to his pre-accident level of functioning. I agree that Mr. K's level of functioning changed after the accident. That, by itself, does not mean that the accident significantly contributed to the change. Dr. VanDeursen does not deal with the evidence that Mr. K was particularly intolerant to psycho tropic medications and that prior to the accident he functioned more normally between hospitalizations, but during these periods he did not take medications. When Dr. VanDeursen saw Mr. K he was taking these medications. Nor does Dr. VanDeursen deal with the doubts he expressed throughout the report.

Because Mr. K has consistently complained of significant problems of cognitive functioning since the accident, Dr. VanDeursen recommended that Mr. K undergo a neuropsychological examination to rule out potential cognitive impairment caused by the accident. Dr. VanDeursen wrote, that while Mr. K's complaints were "potentially consistent with his chronic mental illness, and possibly consistent with the effects of psycho tropic medications, there is indication that Mr. K did sustain a closed head injury as a result of the accident."

Mr. K was admitted to hospital on July 7, 2002. The hospital admission note reads:

Requested admission. Unable to sleep or cope. Came to emerg two days earlier and left. "Stopped meds."

Mr. K was released from hospital after 17 days.

Dr. John Gilman

Mr. K underwent a neuropsychological assessment with Dr. John Gilman over two days in February 2003. At the outset, Dr. Gilman acknowledged:

... the current neuropsychological assessment will no doubt be faced with globally suppressed cognitive functioning routinely observed with psychiatric illness. Posttraumatic losses in neuropsychological functioning are difficult to identify in these cases without the identification of characteristic disparities between certain test performances known to accompany minor brain injuries. This is very difficult to obtain when all scores have been suppressed (lowered) by pre accident psychiatric illness.

Dr. Gilman reported that Mr. K was on risperidone, loxapine, lorazepam and Mobicox.

Dr. Gilman summarized the neuropsychological test results as:

Impaired test results of neuropsychological functioning above go beyond what one would expect with regard to a mild brain injury. They resemble instead the global suppression of scores related to Mr. K's psychiatric condition, related medications and pain complaints... Such test results by themselves do not constitute sufficient evidence to demonstrate a mild brain injury but they do open the door.

His summary of all the test results included:

No doubt psychological factors related to Mr. K's psychiatric condition and related medications can explain much of the global suppression of scores seen throughout most of this assessment. It is unfortunate but in cases with a pre-accident psychiatric history such individuals are put at a large disadvantage when they are required to prove additional losses in cognitive functioning following an MVA.

However, he found impairment in his "Working Memory WMI and Perceptual Speed PSI."

These impaired performances are the hallmark of a mild brain injury and reflect the well-known consequences of diffuse axonal injury. This result was supported by the exceptional loss in Processing Speed relative to Verbal Comprehension and Perceptual Organization ... that cannot be explained by the global suppression of all test performances by psychological depression, anxiety, medications, pain complaints or motivation.

Test of neuropsychological functioning demonstrated perseveration of errors on the Wisconsin Card Sorting Test, an impaired performance on the Stroop Test, impaired Speech Sounds Perception and impaired naming to confrontation on the Boston Naming suggesting frontal lobe compromise.

In answer to the written questions put to him by Mr. K's lawyer, Dr. Gilman concluded that:

Questionable mental and physical stamina, dizziness, an inability to focus on and retain information, difficulties understanding directions, and problems organizing and using information to achieve a goal, all as a result of a mild brain injury, currently limit and restrict Mr. K from employment.

Dr. VanDeursen appreciated the complexity of Mr. K's presentation and the need for a neuropsychological assessment. He reported:

I support the need for eventual completion of a Neuropsychological Examination to rule out potential cognitive sequellae of the accident. However, I would caution, that in order to be interpretable and useful, the timing of such assessment needs to be considered carefully. In my opinion, Mr. K's mental status is not adequately stabilized and resolved to result in interpretable results. I recommend that a Neuropsychological Assessment be carefully planned and coordinated with Mr. K's treating psychiatrist who is likely to be best able to clarify when testing could be reliable.

I have no evidence that Mr. K's treating psychiatrist, Dr. S. Lalani, had any input into Dr. Gilman's assessment. Further, in view of the evidence that Mr. K was intolerant to psycho tropic medications, it would have helped in the assessment to have had Dr. Lalani's opinion on how the medications he prescribed might affect the test results.

As well, Mr. K underwent a neuropsychological assessment in 1995 in which Dr. Tom Ehmann reported:

Combined with the executive/attentional deficits, his comparatively weak ability to produce words and relatively decreased verbal memory suggests a profile of mild cognitive dysfunction not unlike that seen in persons with schizophrenia.

Dr. Gilman did not refer to this assessment.

Dr. David Duncan is a psychologist who assessed Mr. K on June 20 and July 18, 2003 as part of a medical rehabilitation DAC to assess the treatment plan proposed by Dr. Gilman. He did not administer a full battery of tests because he did not think that Mr. K made an honest effort to answer accurately. He wrote:

The symptom validity test administered during this assessment revealed substantial motivational problems. In fact, Mr. K's scores were so low, that they indicated that he was deliberately choosing incorrect answers. Therefore, his poor performance on the other cognitive measures cannot be taken as evidence of cerebral dysfunction.

The measures of motivation that Dr. Gilman employed are much less sensitive than the test administered during this examination, yet Mr. K's scores on one of these tests was still "borderline". Nevertheless, Dr. Gilman concluded that Mr. K displayed "genuine test engagement" and he went on to interpret certain test findings as evidence of cerebral dysfunction resulting from brain injury.

Dr. Gilman acknowledged the difficulty in distinguishing whether cognitive impairments are caused by mental illness, medications or brain injury. He admitted the complexity of Mr. K's presentation but did not consult with Dr. Lalani to determine whether Mr. K's condition had stabilized or when was the best time to test him or how medications might affect the test results.

Nowhere does Dr. Gilman explain how the tests which establish brain injury work or how they distinguish between the various possible causes of cognitive impairment. As well, throughout the body of his report, Dr. Gilman finds that some test results "suggest" mild brain injury. He contradicts himself by saying that the test results are consistent with mental illness and go beyond what one would expect from a mild brain injury when they only suggest a mild brain injury.

Given these difficulties, the jump Dr. Gilman makes from test results which suggest a mild brain injury to a conclusion that Mr. K is disabled by a mild brain injury is not persuasive.

Dr. Susan Finch

Dr. Finch treated Mr. K for the last part of his last hospitalization in British Columbia in 1999 and every two weeks during outpatient care. She saw him a total of about 15 times, half in hospital and half out. The out-patient appointments were less than half an hour and mostly for medication monitoring. Dr. Finch then moved to Kingston, Ontario and assessed Mr. K there in June 2004.

The documentary evidence of Mr. K's last hospitalization in Ontario ended with Mr. K's discharge from the Trillium Health Centre on July 24, 2002. This was his third hospitalization after the accident. The records from that facility were provided under a covering letter dated March 25, 2003. In June 2004, Dr. Finch reported that Mr. K had been hospitalized approximately four times since the accident. During the hearing, Mr. Abadir asked for records of further hospitalizations and Mr. Conforzi agreed to give authorizations for the release of such records. None were filed as exhibits. It is not clear how many times Mr. K was hospitalized after the accident.

Dr. Finch testified that a patient with schizoaffective disorder can have a general cognitive decline over time. She did not know whether Mr. K was more vulnerable to cognitive impairment due to a mild head injury.

The mini mental status exam is a gross test of cognitive impairment. Mr. K did not complete the test and scored very poorly on the portion he completed.

Dr. Finch reported that Mr. K was on risperidone, lorazepam, a pain killer, and another psychiatric medication. She admitted that antipsychotic drugs can affect cognitive abilities. She testified that when she examined Mr. K his speech had slowed down and he had difficulty finding words. He was different from what she had seen in British Columbia. He had poverty of thought and no spontaneous thoughts. He had long pauses before answering questions, which was unusual for him. He did very poorly on the mini mental status exam. She reported and testified that Mr. K had lost his mechanical ability. She concluded that most of what she saw was due to cognitive impairments.

From her testimony, Dr. Finch emphasized Mr. K's presentation in coming to her conclusion that Mr. K had suffered a cognitive impairment. However, Dr. Finch was not sure what medications Mr. K was on when she saw him and her testimony that it was possible that the medications might affect his cognitive abilities does not reconcile with the evidence that the reports of Mr. K's slow speech and response time were always coincident with him taking antipsychotic medications and other medications which increased the sedating effect of those medications.

As well, Dr. Finch was mistaken when she reported that Mr. K was unable to do any mechanics or dismantle objects. A psychiatrist reported that in March 2001, Mr. K was placed in seclusion for flooding a bathroom and slowly dismantling the ward.

As well, Dr. Finch did not know the details of Mr. K's hospitalizations since the accident. When she saw Mr. K in British Columbia, she reported that Mr. K was stabilized on olanzapine and gabapentin. When she saw him in Ontario in 2004 he was on risperidone and another unknown psychiatric medication.

I do not find Dr. Finch's conclusion of cognitive impairment reliable because it is based on inaccurate information and inadequate information and does not deal with the side effects of the medications Mr. K was on.

All the evidence leads me to conclude that the motor vehicle accident did not significantly contribute to any disability due to cognitive impairment Mr. K experienced beyond August 28, 2001. Any cognitive impairment was more likely due to his mental illness or to the side effects of the medications he took to treat that illness.

Physical impairment:

Functional Abilities Evaluations

Mr. K underwent five functional abilities evaluations. The first, on June 28, 2001, with Rosemount Medical Assessment Centre, concluded that he did not exhibit adequate physical ability to manage most of his daily living activities. Mr. K was released one month earlier from four months of treatment of his psychiatric illness in hospital. The assessor thought that Mr. K was treated for depression. The assessor thought Mr. K's medications were for depression. The assessor showed no understanding of Mr. K's psychiatric status and how it or medications might affect the test results.

Mr. K underwent a second assessment in August 2001, as part of an insurer's examination. The assessor found that Mr. K demonstrated the physical ability to meet and exceed his pre-accident job demands. Again, I found no discussion as to any effects Mr. K's psychiatric condition or medications might affect the result.

Mr. K underwent a third assessment on October 3, 2001. This was the second assessment done by Rosemount. Although Rosemount generated the same charts, graphs and tables that it used in its assessment three months earlier, it did not make any meaningful comparison of the two sets of test results.

Mr. K underwent a fourth assessment on October 18 and 26, 2001 as part of a disability assessment at a Designated Assessment Centre. These assessors found that Mr. K was not substantially disabled from his pre-accident employment. Again, no meaningful comparison was made with the former functional abilities evaluations.

Mr. K underwent a fifth assessment on April 15, 2002. The assessor interpreted one questionnaire as demonstrating that Mr. K thinks of himself as "crippled" from back pain.

Despite all these test results, no one did any meaningful analysis in an attempt to prove that any particular results were preferable. Nor did I receive any evidence to shed light on whether Mr. K's psychiatric illness or medications affected the test results or conclusions. The only conclusion I can draw from the opposite conclusions reported is that I cannot tell whether any of these functional abilities assessments were objective or scientific. I do not find any of the functional abilities evaluations useful.

Mr. K tried to return to work with the help of an adjuster before the first hospitalization. At that time, Mr. Hucal found that Mr. K was disorganized and confused and showed no interest in completing the work. These symptoms are similar to the symptoms of Mr. K's psychiatric illness and, as I found above, it is likely that Mr. K was experiencing the onset of his psychiatric illness in the weeks following the accident.

Mr. K testified that he cannot return to his job because he cannot squat "at all" due to pain in his right knee. Mr. K was asked in cross-examination about his ability to ride his bicycle and Mr. K testified that he had not ridden his bicycle in some time and that his ability to ride a bicycle was diminished because of his injuries. Video surveillance taken in November 2002 shows Mr. K squatting to lock his bicycle. It also shows him riding the bike while carrying a parcel in one hand and pushing the bicycle up a hill. He also said that he cannot work because he cannot walk two or three blocks or stand all day. Mr. K explained that he was probably in pain in the video.

Many assessors found that Mr. K was a poor historian. I found several references both before and after the accident of Mr. K having no insight into his illness. Mr. K hoped that he could escape his illness by moving to Ontario, although the psychiatric evidence is consistent that his illness is not currently curable. Mr. K testified that some doctors support him in his decision to stop taking psycho tropic medications after discharge from hospital, whereas the evidence I heard was consistent that Mr. K should take these medications for the rest of his life. At this hearing, and to various assessors, Mr. K minimized the effects of his psychiatric illness and emphasized that his condition has significantly deteriorated after the accident. I find Dr. VanDeursen's opinion that Mr. K perceived himself fully disabled as a result of the accident and that he is clearly invested in believing that his problems are due to the accident also apply to Mr. K's testimony and reports that he is physically disabled.

In March 2002, Dr. Thomas John, a physiatrist, reported that Mr. K was disabled from performing his work. Much of his opinion is based on Mr. K's subjective reports. No where does Dr. John deal with Mr. K's poor insight and perception that his problems are all due to the accident. He relies on a Functional Capacity Evaluation that was conducted one month after Mr. K was discharged after a four-month stay in hospital to treat his psychiatric illness. According to Dr. Finch, Mr. K would normally be in a half-way house at this time. I question the reliability of an assessment conducted at a time when Mr. K was still recovering from his psychiatric episode because it does not deal with this episode. Dr. John also relies on another Functional Capacity Evaluation done in October 2001. This assessment records that Mr. K could not squat. Again, I question the reliability of these findings. Mr. K continued to claim that he could not squat up to the medical and rehabilitation DAC in July 2003 when surveillance showed him squatting in November 2002.

Similarly, Dr. D. J. Ogilivie-Harris, orthopaedic surgeon, does not take into account Mr. K's poor insight and perception that his problems are all due to the accident, in his conclusion that Mr. K is physically disabled. His acceptance of Mr. K's self-reports of pain and limitation of movement, by themselves, are not reliable. Again, he too relies on functional capacity evaluations which in large part rely on Mr. K's self-report of pain and limitation of movement.

Treatment at Pain Rehabilitation Clinic

I heard no evidence or argument concerning the issue of whether Mr. K was entitled to $2,059 for treatment at Pain Rehabilitation Clinic. Accordingly, this claim is dismissed.

Cost of examinations pursuant to section 24 of the Schedule:

Mr. K claims for the cost of a number of examinations. Section 24 allows for the cost of "all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation. "

Psychological assessment - Dr. Shaul - $1,380

The report indicates that Mr. K was interviewed and assessed by Jacqueline Brunshaw, a Ph.D. candidate, on July 6, 2001, under the supervision of Dr. Andrew Shaul, who is a registered psychologist. As a result of the interview and testing the author concluded that Mr. K was suffering from an Adjustment Disorder with moderate depression and mild-to-moderate anxiety as a direct consequence of the accident. The assessment took place two months after Mr. K had been discharged from a three-month stay in a hospital psychiatric ward. The author was unable to detect any hint of Mr. K's extensive and turbulent psychiatric history. The assessment shows no insight and is of no value to anyone and I allow nothing for this assessment.

Functional Abilities Evaluations - $875, $1,000 and $1,000

Rosemount conducted a functional capacity evaluation on June 28, 2001 which concluded that Mr. K could not manage most of his daily tasks. Liberty countered with a functional capacity evaluation on August 14, 2001 which concluded that Mr. K demonstrated the physical ability to meet and exceed the job demands of his pre-accident occupation. Rosemount did another functional capacity evaluation on October 3, 2001 "for the benefit of referring medical practitioner[s] overlooking patient's treatment and recovery to full functional status." I have no evidence why the first or second evaluations could not have been used for the benefit of Mr. K's treatment. Mr. K underwent a fourth functional abilities evaluation at a disability DAC on October 18 and 26, 2001. Mr. K underwent a fifth functional abilities evaluation on April 15, 2002 at an organization called Inter-Disciplinary Evaluation Services. The report does not state why it was done. In his submissions, Mr. Conforzi refers to a functional abilities evaluation in aid of physiatry assessments, however, the only physiatrist assessment I am aware of is that of Dr. John, who did his assessment one month earlier. The only assessment that was reasonably necessary, was the first one. I allow the cost of the first assessment at $875.

In-home assessment - $875

Rosemount conducted an in-home assessment on June 28, 2001, in which the assessor, a kinesiologist, recommended four hours a week of housekeeping assistance. Liberty claimed that it did not pay for the assessment because it had just completed one. I heard no evidence that the Liberty assessment was inadequate or required a response from Mr. K and therefore allow nothing for this assessment.

Physiatry assessment by Dr. John - $1,500

Dr. John conducted his assessment on March 25, 2002, more than a year after Liberty terminated income replacement benefits and a month after Mr. K applied for mediation of his claims. This assessment is more in the nature of a medical legal report for use at the arbitration hearing and as such is not recoverable under section 24 of the Schedule.

Job site assessment - $697.14

The job site assessment was conducted on April 18, 2002, after the application for mediation was filed. Again, because of the timing, it is more in the nature of a report to be used at the arbitration hearing and not for the purpose of persuading Liberty to pay benefits.

Neurological assessment - $1,500

Dr. Ayoob Mossanen performed a neurological assessment on April 19, 2002. Again, as with the two above assessments, it is more in the nature of an expense of the arbitration proceeding and not an expense under section 24 of the Schedule.

Psychological assessment - $2,700

The only evidence of a bill for a psychological assessment is that of Dr. Shaul for $1,380, which I dismiss.

Transportation $556 and GST $517.80

I cannot tell where these amounts came from and allow nothing under this heading.

SPECIAL AWARD

Under section 282(10) of the Insurance Act, I am required to make a special award where the insurer has unreasonably withheld or delayed payments.

Mr. K had a significant pre-existing condition which caused periods of disability. Except for Dr. Debow, who I found to be biased, all the expert opinion was that stress or trauma could trigger an episode of schizoaffective disorder and disability. Although I have found that Mr. K started showing symptoms of his illness in the weeks following the accident, he was not hospitalized for another two months. The question is whether a reasonable insurer should have known, as I have found, that the trauma of the accident triggered Mr. K's schizoaffective episode and hospitalization.

One could argue that Liberty was too quick to blame Mr. K's disability on his pre-accident condition without considering whether the accident exacerbated that condition. Where a person has a significant pre-existing physical or mental disability, it is unreasonable, in my view, to automatically assume that every subsequent physical or mental hardship the person experiences is attributable to the pre-existing condition. However, I did not receive clear evidence on the progress of an episode of schizoaffective disorder. I had to put various pieces of evidence together from different sources to arrive at my conclusion that the trauma of the accident and loss of employment triggered a schizoaffecive episode. The evidence and answers were not easy or clear. Therefore, I find that Liberty did not act unreasonably in terminating benefits when it learned that Mr. K was in hospital because of his psychiatric illness.

EXPENSES

Either party may make written submissions on the issues of entitlement and amount of expenses of the arbitration proceeding in accordance with the Dispute Resolution Practice Code rules.

January 6, 2005

William J. Renahan

Arbitrator

Date

Neutral Citation: 2005 ONFSCDRS 1

FSCO A02-000780

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

K

Applicant

and

LIBERTY 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. Liberty shall pay to Mr. K income replacement benefits from February 1, 2001 to August 28, 2001, together with interest calculated according to section 46 of the Schedule.

2. Mr. K is not entitled to $2,059 for treatment at Pain Rehabilitation Clinic.

3. Mr. K is entitled to $875 for a functional capacity evaluation performed by Rosemount together with interest calculated according to section 46 of the Schedule.

4. Mr. K is not entitled to a special award.

January 6, 2005

William J. Renahan

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2In other documents, this drug is spelt at Risperdal, risperidone, resperiodone and respiraton. I have used "risperidone" throughout this decision.