Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 184
FSCO A03-001791
BETWEEN:
THOMAS WAITE
Applicant
and
AVIVA CANADA INC.
Insurer
REASONS FOR DECISION
Before:
David Snider
Heard:
March 13, 14, 15 & 16, 2006, in Simcoe, Ontario, Ontario.
Appearances:
R. Paul Hosack for Mr. Waite
Robert H. Rogers for Aviva Canada Inc.
Issues:
The Applicant, Thomas Waite, was injured in a motor vehicle accident on September 5, 2000. He applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.1 Aviva terminated weekly income replacement benefits on June 28, 2001. The parties were unable to resolve their disputes through mediation, and Mr. Waite 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:
Is Mr. Waite entitled to receive a weekly income replacement benefit between June 29, 2001 and September 4, 2002?
Is Mr. Waite entitled to receive a weekly income replacement benefit from September 5, 2002 to present and ongoing?
Is Aviva liable to pay Mr. Waite's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Waite liable to pay Aviva's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Waite entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Result:
Mr. Waite is entitled to receive a weekly income replacement benefit between June 29, 2001 and September 4, 2002.
Mr. Waite is entitled to receive a weekly income replacement benefit from September 5, 2002 to present and ongoing.
Aviva is liable to pay Mr. Waite's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
Mr. Waite is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.
ISSUES:
Thomas Waite claims entitlement to ongoing weekly income benefits before and after the 104-week period. He submits that the entitlements are due to a broad range of physical and psychological difficulties resulting from his motor vehicle accident of September 5, 2000 which has resulted in a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. He submits that the complete inability test applies to his situation throughout the period since the date of his car accident and that the lesser "substantial inability to perform the essential tasks of his pre-accident employment" test which applies to the period between June 29, 2001 and September 5, 2002 is subsumed within the higher post 104-week test. The parties agree that the onus is upon Mr. Waite to prove that it is more probable than not that the motor vehicle accident in question made a significant or material contribution to his impairment.
The Insurer submits that the motor vehicle accident was not a material contributor to Mr. Waite's disability and/or that Mr. Waite was already disabled from competitive employment prior to the motor vehicle accident. It further submits that if either of these are found to be true that Mr. Waite's claim for income replacement benefits should be dismissed in its entirety. The Insurer acknowledges that it paid income replacement benefits in a weekly amount of $245.68 between September 14, 2000 and June 28, 2001. The weekly quantum is not in dispute.
RESULT:
For reasons which will follow, I have concluded that on September 5, 2000 Thomas Waite suffered injuries in a motor vehicle accident which exacerbated his pre-existing injuries and conditions. In addition, Mr. Waite was materially disabled as a direct consequence of the motor vehicle accident by depression and chronic pain which continue to the present. Accordingly, as a result of the accident, Mr. Waite is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. He therefore qualifies for and is entitled to income replacement benefits pursuant to subsection 4(1) of the Schedule for the period between June 29, 2001 and September 4, 2002.
Mr. Waite also qualifies for and is entitled to income replacement benefits from September 5, 2002 to present and ongoing pursuant to subsection 5(2)(b) of the Schedule. The weekly quantum of benefits throughout these two periods was not in dispute and will remain at the level paid prior to the stoppage of the benefit by Aviva Canada Inc.
Mr. Waite is also entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.
BACKGROUND FINDINGS:
There is no dispute that Thomas Waite has a long history of injury, most of which is work-related, which resulted in his having an inconsistent work record for at least six years prior to the date of loss herein. With regard to his physical condition immediately prior to the motor vehicle accident, I have found that his long-term history of injury includes having fallen off of a roof and having been beaten up in a fight more than 10 years prior to the date of loss. These events caused chest and back injuries and pain from which he recovered sufficiently to continue working full time. Mr. Waite began working for Dominion Castings in September 1992 and in March 1994 he experienced a significant injury to his left shoulder due to the repeated stress of shovelling very heavy loads of sand into a casting mould. In June 1995 his family doctor, Dr. Richard Levy, noted that his problem was more in the neck, which was irritated by overuse of his right arm. At that time the doctor identified his left neck, left trapezius and left shoulder as the real set of problems he was experiencing. This injury led to extended absences and then a move to lightened, modified job duties (assisted by WSIB funds) until he was terminated by Dominion in May 1997.
Mr. Waite began working for Lockwood Manufacturing Inc. as a fitter welder, among other duties, in February 1999. This work was also initially supported at least in part by WSIB funds and he was assigned modified duties right from the start. Lockwood allowed him to get assistance from other employees whenever heavy lifting or other similar demands were present in his new job. Lockwood granted Mr. Waite a number of pay raises which raised him from a starting wage of $10 per hour to $15 per hour just prior to the motor vehicle accident. In May 1999, Mr. Waite had to have hernia surgery and was off work until July of that year at which point he resumed the modified duties he had prior to the surgery.
I have found that on February 10, 2000, Mr. Waite was injured at work while bending and drilling metal bars. He attempted to work over the next few weeks. He saw his family doctor on February 29, 2000 reporting a re-injury to his left shoulder and on March 20, 2000, he went off work. On March 31, 2000, he reported "pain in his chest when his back was really sore" to his family doctor. Over the next number of months he had chiropractic treatments, massage therapy and physiotherapy. He had continuing complaints of headaches, neck pain and upper and lower back pain. He was referred to two medical specialists and he had at least two hospital attendances for pain. He was put on prescription medications for sleeping problems and he also was also prescribed painkillers and muscle relaxants.
Mr. Waite applied for and received short term disability benefits from the medical benefits carrier available through his work during this period and on July 17, 2000 he was granted long-term disability benefits. Mr. Waite attempted a graduated back to work program in the May-June 2000 period, but this failed due to a bout of pleurisy which he suffered. On July 27, 2000 Mr. Waite was assessed by a rheumatologist, Dr. Alfred Cividino, who noted that he explained the concept of "hurt vs. harm" to Mr. Waite and recommended that Mr. Waite increase his physical activity.
In August, 2000 Mr. Waite started another graduated back to work program which allowed for part-time and variable hours, modified work duties and varied tasks as required. His weekly hours of work during August 2000 were 18 hours, 36.5 hours, 35.25 hours and 19.25 hours. His only September pay indicates 8.75 hours, but based upon the date and time of the motor vehicle accident as derived from the Motor Vehicle Accident Report, namely Tuesday, September 5, 2000 at 16:44 p.m., he must have worked those hours either sometime over the Labour Day long weekend or else on the date of the accident itself, because it is uncontroverted that Mr. Waite did not return to work at any point after September 5, 2000.
DOCUMENTARY EVIDENCE:
I have reviewed the entire medical file, both pre and post mva, as well as other documentation provided by Mr. Waite. This includes various assessments prepared for his disability insurance carrier. I have noted that the pre-mva documents provided to that carrier were consistent in their assertions that Mr. Waite was dealing with significant pain and disability factors prior to the motor vehicle accident on September 5, 2000. I recognize that these documents were being prepared by Mr. Waite and his attending doctors with the aim of qualifying him for Short-Term Disability and/or Long-Term Disability benefits from that carrier, as a result, and I have attached a guarded level of evidentiary weight to them. I find that despite the disabilities asserted in the documentation provided to the disability insurer carrier in the pre-mva period Mr. Waite returned to his workplace on modified duties and was working toward a full return to work in the weeks immediately prior to the accident. I also found it significant that Dr. Cividino was recommending, contrary to the documentation which was being provided to the disability carrier, that Mr. Waite return to active physical activity as soon as possible in late July 2000 and that Mr. Waite did restart a modified duty return to work program soon thereafter.
I find that the medical documentation prepared after the accident showed some significant new factors to be affecting Mr. Waite, most notably right-knee weakness, severe chronic pain and depression. The knee weakness improved and resolved itself by about early January 2001 after he wore a knee brace for a number of months, but the pain and depression remained. Many of the post-accident reports and letters have emphasized the depression and chronic pain factors and outline a clear history of pain treatment. The letters of Dr. P. Varey, a Physical Medicine and Rehabilitation Specialist, and the notes and records of the family physician, Dr. R. Levy, repeatedly mention that Mr. Waite is depressed. In April 2004 Dr. G. Gort, a Consulting Psychiatrist of the Adult Mental Health Services of Haldimand-Norfolk, confirmed the diagnosis of depression and prescribed antidepressant medications. Dr. Gort specifically noted that as a consequence of the accident, Mr. Waite "feels useless and damaged."2
The DAC Disability Assessment Report dated May 24, 2001 was carried out by a two-person team, namely Dr. S. Kinsinger - Chiropractor, as primary evaluator, and Mr. S. Blad - Kinesiologist. Mr. Blad carried out a Functional Abilities Evaluation in advance of Dr. Kinsinger's evaluation of Mr. Waite and this evaluation was made available to Dr. Kinsinger for his report. In his report3, Mr. Blad states that:
Testing was stopped voluntarily by Mr. Waite on both days. He terminated testing due to significant increases in pain. He stated he was having difficulty breathing and felt nauseous. His posture and gait changed from the beginning of the assessment. Since the client did not complete all tests the information in this report is limited. His inability to complete testing may be an indication that he is unable to perform those tasks since he was not able to continue.
Validity of effort profile indicated that Mr. Waite gave "Poor Effort" in this evaluation. It is believed that Mr. Waite's inconsistencies can be attributed to his high levels of pain. In essence he was self-limiting his efforts due to pain.
Dr. Kinsinger notes only the "Poor Effort" and "self-limiting" points in his report and completely disregards the pain as an explanation. There is also no mention in this DAC Report of other psychological factors as this team was clearly not qualified to assess such issues.
WITNESSES:
I heard from the following witnesses, in order - Mr. Thomas Waite, Dr. Harold Mersky, Mrs. Cheryl Waite, Dr. John C. Clifford, Ms Maike McCaskell and Mr. Jon Schertzberg. Dr. Clifford was the sole witness called by the Insurer and he was heard out of order to accommodate his scheduling.
There were three expert medical witnesses, as follows:
Ms Make McCaskell
Ms McCaskell is an Occupational Therapist who prepared an Occupational Therapy Assessment and Employability Analysis of Mr. Waite dated December 7, 2004. Ms McCaskell tesified in an obviously sympathetic way toward Mr. Waite and it was clear that her entire approach in the assessment had been to determine whether Mr. Waite was completely disabled without much enquiry into what caused him to be that way. In her report4 she sets out the date of the motor vehicle accident herein variously as September 5, 2000, September 15, 2000 and December 2001. She was not successful in explaining these discrepancies in her testimony. Further, she did not appear to have examined and/or considered most of the available information concerning Mr. Waite's physical condition prior to the month of August, 2000. In fact, in her charting in the report she indicates, at page 29, that Mr. Waite's various modalities of mobility were "Unlimited" prior to the motor vehicle accident. I find that her report, although useful in terms of its elucidation of Mr. Waite's physical limitations and employability issues post accident, is not useful at all with regard to causation factors. Ms McCaskell made no effort whatsoever in the report to discern whether and how the motor vehicle accident was in any way or to what extent causative, over and above his existing limitations pre-accident, of the "complete inability to engage in any employment for which he is reasonably suited by education, training or experience" which she concluded that he suffers from. She could not shed further light upon these conclusions in her testimony.
I have, however, accepted and placed significant weight upon her testimony about Mr. Waite's post-accident competitive disadvantage in the workforce and his inability to perform any type of work on a regular basis. Ms McCaskell also described a significant difference with Mr. Waite as compared with what she described as the typical patient with similar challenges. She stated that Mr. Waite seemed to consistently, throughout his work history, return to work each time he had a problem regardless of how long that problem kept him out of the workforce. This, she stated, is statistically unusual because most people who experience long absences from work tend not to return, but in Mr. Waite's case she observes that even six or seven week absences from work in the pre-mva period were not significant for him and he showed a consistent pattern of returning to work after each period of disability prior to the motor vehicle accident. I find that this is useful evidence with regard to the materiality of the disability Mr. Waite experienced as a direct consequence of the accident and I have given it significant weight in reaching my conclusions.
Dr. Harold Mersky
Dr. Mersky is a Professor Emeritus of Psychiatry at the University of Western Ontario. He testified that he is also an expert on chronic pain and the former editor of Pain Research & Management — The Journal of the Canadian Pain Society. I therefore accepted him as an expert witness with regard to psychiatric issues and chronic pain and its associated medications. Dr. Mersky's testimony was based upon an interview and examination of Mr. Waite which occurred January 16, 2006, over 5 years after the date of the motor vehicle accident. As well, on cross-examination it was revealed that Dr. Mersky's opinion and conclusions concerning the material contribution of the motor vehicle accident as a causative factor in his complete disability were, at least in part, based on incorrectly counted and compared numbers of physician visits in the immediate pre and post-accident periods. I find that both of these factors reduced, but did not significantly damage, the weight I could attach to his evidence.
Dr. Mersky determined that Mr. Waite was, at the time of his report, suffering from chronic pain and a mild to moderate degree of depression. He described Mr. Waite as currently "more anxious than depressed, but both." He attributed these factors back to the motor vehicle accident and suggested that Mr. Waite was not depressed immediately prior to the accident, but was severely depressed for a period of time thereafter and continuously to a lesser degree throughout the years thereafter. He testified that depression can increase symptoms of chronic pain in an individual and that is the case with Mr. Waite. He also concluded that Mr. Waite's chronic pain medications did increase significantly over a period of months after the accident and that he is still on high levels of pain medications to this day. He defined chronic pain simply as an unpleasant sensory or emotional experience associated with tissue pain that continues for more than six months. He also testified that chronic pain in and of itself can be disabling and, as such, he considered Mr. Waite to have been disabled by chronic pain since the occurrence of the accident, regardless of and in addition to any physiological reasons for the pain.
Dr. Mersky stated a strong opinion that the independent medical examination prepared by Dr. T. Hupel, Orthopaedic Surgeon, on January 13, 2001 was clearly wrong and stated that if Dr. Hupel had taken a "serious" history of Mr. Waite he would not have arrived at the conclusion that Mr. Waite was ready to return to work. He considered Dr. Hupel's comment5 that "Certainly, the motor vehicle accident did not produce new injuries" to be incorrect and also noted that Dr. Hupel did not feel that the accident resulted in an exacerbation of pre-existing injuries, which he also considered incorrect.
Dr. Mersky also analyzed the DAC report dated May 24, 2001 prepared by Dr. S. Kinsinger, Chiropractor and Mr. S. Blad, Kinesiologist. He disagreed strongly with the methodology used by Dr. Kinsinger in arriving at his calculation that Mr. Waite suffered from a 20 per cent whole person impairment. Dr. Mersky testified that the DAC team should have also included a pain specialist and a psychiatrist, as the conclusion reached by Dr. Kinsinger was based solely upon musculoskeletal factors, making the 20 per cent total body impairment calculation incorrect. He pointed out two major considerations. Firstly, 100 per cent impairment from being able to work is reached long before 100 per cent incapacity would be found. Secondly, the calculation should have been done as a percentage reduction of residual capacity, which involves "stacking" various impairing factors on a percentage of a percentage basis. In this case, mental/emotional status would have contributed to the percentage of incapacity, as would pain factors, and the total attributable to the motor vehicle accident would, in Dr. Mersky's opinion, have gone well over the 50 per cent rate for Mr. Waite even after correcting for pre-existing conditions. I find this to be a significant piece of evidence and I have concluded that Mr. Waite was not properly evaluated by Dr. Hupel and/or the DAC team.
Dr. Mersky also analyzed the medical report dated October 22, 2002 prepared by Dr. John Clifford, Physical Medicine and Rehabilitation Specialist. This particular report was prepared for the long-term disability insurance carrier to determine Mr. Waite's ongoing eligibility for those benefits. Admission of the report in these proceedings was contested by Mr. Waite, but I found the report to be relevant to the causation and continuing disability issues and since the entire Long-Term Disability file had been produced to the Insurer and jointly submitted there was no surprise for either side and hence no prejudice in its admission in this matter. Dr. J. Clifford was also subsequently called as a witness in these proceedings.
Dr. Mersky considered Dr. Clifford's report to be an overall careful and thorough review of the clinical findings up to the date of its preparation. Dr. Mersky testified that he and Dr. Clifford have a great difference in their respective philosophies with regard to their treatment of injuries and associated pain. Briefly described, Dr. Mersky indicated that Dr. Clifford's approach is to examine the physiology of the patient and if no objective specific physiological factors can be found for the pain the patient is experiencing, then the pain isn't "real" and the patient can always get over it. Dr. Mersky considers this approach to be unsupportable. As well, Dr. Mersky testified that Dr. Clifford works on the assumption that in all cases soft tissue injuries repair themselves within 12 weeks. Dr. Mersky agreed that this is true in most cases, but certainly not in all cases. Dr. Mersky testified that Dr. Clifford is wrong to assume that the patient can always get over the pain and stated that even highly motivated patients cannot always recuperate from soft tissue injuries in 12 weeks or at all. Dr. Mersky stated that both he and Dr. Clifford describe chronic pain as being a subjective experience, but where Dr. Clifford discusses inorganic factors only in a negative way and rejects the concept of chronic pain, Dr. Mersky validates them and specifically treats patients for chronic pain. Dr. Mersky testified that, contrary to the conclusion in Dr. Clifford's report that "Apart from complaints of left shoulder pain, the widespread complaints of musculoskeletal pain had no objective clinical correlates"6, chronic pain is a valid cause of disability that can be exacerbated by depression, developing lesions or unrecognized physical symptoms which may be demonstrated by better MRI s. Dr. Mersky did not agree with Dr. Clifford's conclusion that: "Mr. Waite had significant limitations that were in place prior to the MVA. In the context of soft tissue injuries sustained in the MVA (05.09.00), there would be no indication for any additional restrictions."7 Dr. Mersky's opinion was that even those injuries which did pre-exist were made worse by the MVA - and Dr. Mersky considered the pain itself to be chronically disabling for Mr. Waite. I find that Dr. Mersky is correct in these conclusions.
Dr. John C Clifford
Dr. Clifford is a Physical Medicine and Rehabilitation Physician. He operates a clinic under the name of "Disability and Assessment Inc." in London, Ontario. He was requested by Manulife Financial to carry out an independent medical examination of Thomas Waite to determine what medical restrictions and limitations Mr. Waite was suffering from, among other factors. It was the desire of Manulife Financial to determine Mr. Waite’s eligibility for long-term disability benefits and they requested the medical examination from Dr. Clifford as part of their assessment process. Dr. Clifford is duly licenced with the College of Physicians and Surgeons of Ontario and based upon his descriptions of his training and 25 years of experience, I accepted him as a qualified expert in the area of rehabilitation medicine.
Although the report he submitted was not prepared for Aviva Canada Inc. or based upon the exact definitions of eligibility for disability benefits under the Schedule, I determined that his report dated October 22, 2002 was of relevance to the issues in dispute in this hearing. Dr. Clifford took a detailed history of Mr. Waite and conducted a physical examination of him as part of the process of his assessment. He also reviewed extensive medical documentation provided by Mr. Waite’s family physician, Dr. Levy of the Levy Medical Clinic; the Simcoe Physiotherapy Centre; Dr. R. Cividino, Rheumatologist; Dr. P. Varey, Physiatrist; Dr. T. Hupel, Orthopaedic Surgeon; Sibley & Associates; and the Norfolk General Hospital Workers Community Clinic.
In his testimony, Dr. Clifford explained that he completes his assessments by meeting with the patient and dictating a history from the patient's subjective descriptions of their injuries and pain, after which he reviews the documentation. In the case of Mr. Waite, he indicated that he booked one hour for taking the history and conducting a physical examination. He then indicated that he went beyond Mr. Waite's self report and compared it with how it fit into the objective physical data obtained from his examination. He stated that he based his opinions on logic, relevant medical articles and "making sense."
Dr. Clifford then explained his understanding and treatment of soft tissue injury. His opinion is that soft tissue heals spontaneously and that the human body is programmed to heal soft tissue injuries within six to nine months. He considers it better not to immobilize the patient and that although it hurts to move, the patient heals better as a consequence of continuing to move while healing. In his opinion it is rare for healing not to occur and he states the he has a "huge difficulty" with ongoing reports of pain. He needs to find actual physical evidence of why something is not healing because something has to be wrong for it not to heal. He emphasized the value of activity as it facilitates healing and pain can be treated while this movement-based healing is going on. He recommends stretching, exercise and modified work duties for his patients. It should be emphasized that he did not treat Thomas Waite, but confined his efforts with Mr. Waite to the assessment task he was assigned.
Dr. Clifford went on to testify that pain being described by a patient that does not correspond to some "marker" of injury is, in his opinion, reason to question the credibility of the patient. He dismissed the concept of chronic pain as being a valid objective diagnosis if it is not associated with a diagnosable organic cause. He acknowledged that there can be chronic pain where there is a long term chronic organic injury, but stated that where there is inorganic chronic pain there can be "no explanation of it and there is nothing left to treat" at that point and in his opinion it is necessary to simply get the patient moving. Dr. Clifford acknowledged that the experience of chronic pain is legitimate but he then emphasized that the pain should be treated with analgesics and the patient should be told to get active. He also acknowledged that depression and environmental factors strongly affect pain and its perception by the patient, but said little else about these effects on Mr. Waite. His report was also silent on the psycho-emotional aspects of Mr. Waite's condition.
To explain how his approach differs from that of Dr. Mersky, he described the medical model versus the functional model of treatment. In Dr. Clifford's opinion, Dr. Mersky follows the medical model, in which the patient's report of symptoms is accepted and the physician focuses upon diagnosing and treating the disease (in this case chronic pain). Dr. Clifford prefers the functional model within which the doctor treats whatever specific injuries there are and once there is no longer any active pathology he switches to the rehabilitation model where the doctor "stops worrying about treatment and concentrates on rehabilitation." Dr. Clifford went on to say that "physicians need to move to the functional model." His final opinion was that Mr. Waite should have had extensive vocational rehabilitation, but he did not receive it.
On cross-examination, Dr. Clifford admitted to having been the subject of complaints to the College of Physicians and Surgeons, most particularly for 'embellishing' his opinions and, in a complaint filed by Dr. Mersky, being 'counselled in person' and told not to make comments such as "certain people come to believe that certain events entitle them to stop working and get money." Regardless of these past occurrences, he held to his opinions concerning chronic pain and described pain perception as a symptom, not a conclusion. He emphasized again the need for treating physicians to move away from the medical model toward the functional approach. He did admit that chronic pain is a valid concept and that patients do report it. However, he stated that if it is non-malignant then it is safe for the person to be put into active modalities. He was asked if perceived pain can impair a person and answered "in real life, yes - that's why you prescribe analgesics."
I find that Dr. Clifford did not properly address the complexity of symptoms experienced by Mr. Waite, most specifically including the psychological factors and chronic pain that I have found that he suffered from after the accident. I find further that Dr. Clifford’s complete focus on organic pain caused him to disregard Mr. Waite's actual experience of suffering and limitations on his ability to work. As a result, his conclusions about Mr. Waite’s ability to return to work at the time of his assessment were seriously flawed.
I will now turn to the lay witnesses:
Jon Schertzberg
Mr. Schertzberg was Thomas Waite's supervisor when he was a welder at Lockwood Manufacturing Inc., right up until the date of the accident in this matter. Mr. Schertzberg was called as a witness to attest to Mr. Waite’s character and his behaviours and attitude at the workplace. Mr. Schertzberg did not have any documentation in his possession with regard to Mr. Waite and as a result he was able to testify only in a general way concerning Mr. Waite’s work ethic while he was at Lockwood. He described Mr. Waite's attendance as good and indicated that he was willing to work overtime when asked. He indicated that Mr. Waite worked hard to meet hourly quotas and other goals set by Mr. Schertzberg. He described Mr. Waite as being a more conscientious worker than most. After March 1, 2000 he described Mr. Waite's duties as being modified and lighter duty but indicated that Mr. Waite did not relate any difficulties with his work to him. He also stated that just before the motor vehicle accident he understood that with physiotherapy Mr. Waite would eventually be able to return to work in a "normal" capacity.
On cross-examination it quickly became clear that Mr. Schertzberg did not have complete recollection of Mr. Waite's job performance in the months and weeks immediately prior to the accident and that he was piecing together his answers based solely upon his memory of events which took place over five years prior to the hearing. His answers were therefore limited in their value and can only be interpreted as his general memory and impression of Mr. Waite as a worker at Lockwood. I found his evidence to be of very little weight in this matter, but that it neither helped nor hindered the case being posited by Mr. Waite.
Cheryl Waite
Cheryl Waite is Thomas Waite's wife. She testified that they married in 1991 and that they have three children, all boys. Mrs. Waite detailed many of the personal aspects of their lives together both before and after the accident and testified at length concerning the changes she saw in Mr. Waite in the post accident period. Her description of her husband in the mid 1990's was that he had soreness from his shoulder injury and problems with his ribs, but that he worked normal days when employed and was helpful and hard-working around their house. She stated that although Mr. Waite had some restrictions he could work a full day at Lockwood and that he was working as much overtime as he could get up until about January 2000 because they were working toward buying a house. She confirmed that in February and March 2000 Mr. Waite's ribs became a more major problem and that he missed work for a period of time. She then described the 5 to 6 week period prior to the accident. She stated that Mr. Waite was involved in a graduated return to work program and that he was gradually increasing his hours of work during that time, although she admitted on cross-examination that Mr. Waite's hours of work were going "up and down" just prior to the accident and that he was going to his doctor during the period. She again emphasized, however, that Mr. Waite was "very motivated" to return to work. The two of them discussed a plan that they hoped would have him back to work full time by around the end of September 2000. At that time they were planning to buy a house by Christmas time 2000. During the month before the motor vehicle accident she stated that Mr. Waite was also doing all of their family gardening with the help of his sons. He had good days and bad days but they were optimistic about his return to work and their ability to buy their new house that fall.
Mrs. Waite then described the accident itself and the after effects. In particular, the morning after she described herself as being sore, but that Mr. Waite could not get up out of bed at all. Mr. Waite went to the hospital that day. She stated that in the 3 to 6 months after the accident, Mr. Waite’s behaviour and mood were changed considerably from his pre-accident state. She described him as being depressed, newly moody, angry, frustrated and deeply disappointed about not being able to return to work. She also stated that although Mr. Waite had been able to attend regularly at Dr. Levy’s office in the past, that was much more difficult and sporadic after the accident, because they no longer had a car and had to rely upon other people to drive him to appointments. As a result, lots of medical appointments were cancelled in the early post-accident period.
As for the longer term effects on Mr. Waite, she stated that he does 'tons less work around the house, that his gardening stopped completely, that he is less patient, has far more temper and that she feels he is depressed about "being a failure." He doesn't do anything for enjoyment anymore, just watches movies. She stated that Mr. Waite has expressed "more times than she can remember" his desire to return to work. She described everything as being different with regard to their personal relationship since the date of the accident.
I find that Mrs. Waite testified in a frank and honest manner and that her testimony served to confirm that her husband became seriously depressed and suffered from both exacerbated and new injuries as a consequence of the accident.
Thomas Waite
Mr. Waite testified at length and with consistent frankness about his condition before and after the accident. When he was challenged with regard to the content of various documents (particularly the pre-accident documents which were submitted by him or on his behalf to his disability insurance carrier) he adopted their contents and accepted that some of the statements therein would be contrary to his interests in this action. Nonetheless, his consistent demeanour and description of what he has gone through over the past 11 years or so gave me no reason to doubt that he was giving his testimony to the best of his ability and as accurately as he could recall it. Put succinctly, under both direct and cross-examination Mr. Waite admitted that he had challenges prior to the motor vehicle accident, and emphasized that these were concentrated in the area of his left shoulder and neck and in his rib cage. However, he also described exacerbation of these symptoms by the motor vehicle accident as well as the onset of new problem areas such as his right knee. It was clear from his testimony that post-accident he felt "useless" and "depressed" and frustrated that he could not go back to work due to his pain. He described his present state of mind as being more positive but he does not believe that he can go back to work, even though he would like to. He continues to suffer from chronic pain and is on a number of medications for this condition. He describes the pain as persistent and "getting worse." He does not sleep through the nights due to pain and has not been able to find a way to be comfortable for any sustained length of time.
Mr. Waite describes his life experience since the date of his accident in very negative terms. It is clear from his testimony that the optimism which carried him through his earlier physical challenges and kept him going back to work after each setback was completely eliminated by the effects of the accident. These negative psychological factors, including significant and prolonged chronic pain symptoms, were clearly identified by him as having been caused by the motor vehicle accident.
ANALYSIS:
The parties submitted that the real issue in this matter is causation. More specifically, whether Mr. Waite suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience as a direct consequence of the motor vehicle accident of September 5, 2000. This causation issue can be summarized as whether it is more probable than not that the accident made a material contribution to Mr. Waite’s inability as described this way.
I note that the Insurer originally accepted Mr. Waite’s eligibility for income replacement benefits and paid them at the rate of $245.68 per week between September 14, 2000 and June 28, 2001. They then terminated these benefits on the basis of an independent medical examination by an orthopaedic surgeon, Dr. Tom Hupel. Dr. Hupel did not find any effects whatsoever from the accident on Mr. Waite’s ability to work and did not attribute any symptoms to the accident. Mr. Waite requested a Disability DAC as a result of Dr. Hupel's findings and this was carried out over a period of three days between May 9 and May 24, 2001.
I have examined the Disability DAC Report which resulted from Mr. Waite’s request and I find that it was completely inadequate, as was Dr. Hupel’s report. In both cases the entire examination was based upon musculoskeletal factors alone and there was no acknowledgement of Mr. Waite's reports of pain in the final conclusions of either one. They also both entirely missed the exacerbating effects of the motor vehicle accident on Mr. Waite's pre-existing medical complaints. I concur with Dr. Mersky's assessments of these reports. He finds Dr. Hupel's report to be dismissive and incomplete and based upon an inadequate history being taken. I see no reason to disagree with this description. Dr. Mersky also points out the inadequacy of the DAC report due to the insufficient size and level of specialization of the DAC team. He also explained the inaccurate assessment of factors leading up to the findings of a 20 per cent whole person impairment by Dr. Kinsinger. I accept Dr. Mersky's opinion and find that these reports were not able to determine the true nature of Mr. Waite's impairments after the accident. I also find that they did not adequately deal with the exacerbation of the musculoskeletal symptoms they did identify.
Accordingly, I find that Mr. Waite was entitled to income replacement benefits for the period between June 29, 2001 and September 5, 2002, plus interest.
Turning now to the larger question of causation of a "complete inability to engage in any employment for which he is reasonably suited by education, training or experience", pursuant to section 5(2)(b) of the Schedule, I find that Mr. Waite's ongoing inability was materially affected by the accident. I find that he suffers from chronic pain, anxiety and depression "more probably than not" as a direct consequence of the accident.
The testimonies of Drs. Mersky and Clifford reveal that they are diametrically opposed to one another in their approach to chronic pain and disability. The description of the Medical vs. Functional models of treatment given by Dr. Clifford was very useful, so his testimony was of value regardless of the fact that his report was prepared for purposes other than determination of eligibility for benefits under the Schedule. The effect of his explanation of the difference in approach was great clarification of why in this case the medical reports from the opposing sides were contradictory to one another. There is no doubt in my mind that both of the treatment approaches upon which they were based are valid and that either one or the other will be most effective in individual cases, but that each case must be assessed carefully on its own.
In the case of Mr. Waite, I find that the functional model was utilized insufficiently due to the assessors complete reliance upon organic musculoskeletal factors in determining disability. That approach fell far short of truly reflecting the challenges and disabilities faced by Mr. Waite. It is clear from the evidence that Mr. Waite was cared for by Dr. Levy and Dr. Varey, among other providers, following the medical model. He was sent for some physiotherapy fairly soon after the accident, but due to the reports of Dr. Hupel and the Disability DAC, he was cut off from benefits very early on and did not receive the type of treatment and financial support he needed in order to make a better recovery during 2001, 2002, 2003 and 2004 . I find it significant that he was approved for chiropractic treatment by a med/rehab DAC in March 2005, which clearly confirms that he has ongoing symptoms. I find that as a direct consequence of the accident he suffered certain exacerbations of his pre-existing physical problems and that he suffered some new soft-tissue injuries as well. More importantly, though, he also became emotionally overwhelmed, depressed, anxious and pain-focussed which clearly lead to the chronic pain condition he is now suffering from. I find that these conditions arose as a direct consequence of the accident and that they have been consistently and seriously disabling, as a satellite of conditions, throughout the period since the accident.
Accordingly, I find that Mr. Waite is entitled to income replacement benefits from September 6, 2002 to present and ongoing, plus interest.
I therefore restate my conclusion that Mr. Waite has been, and remains, eligible for income replacement benefits from one week post accident to present and ongoing.
EXPENSES:
Mr. Waite has successfully proven his claim(s) for income replacement benefits during both the pre and post-104 week periods. Therefore, I exercise my discretion to award Mr. Waite his expenses incurred in this hearing. If the parties are unable to agree on the quantum of the expenses they may make an application pursuant to the requirements of the Dispute Resolution Practice Code.
November 16, 2006
David Snider Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 184
FSCO A03-001791
BETWEEN:
THOMAS WAITE
Applicant
and
AVIVA CANADA INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I..8, as amended, it is ordered that:
Aviva shall pay Mr. Waite a weekly income replacement benefit between June 29, 2001 and September 4, 2002, pursuant to subsection 4(1) of the Schedule.
Aviva shall pay Mr. Waite a weekly income replacement benefit from September 5, 2002 to present and ongoing, pursuant to subsection 5(2)(b) of the Schedule.
Aviva is shall pay Mr. Waite's expenses in respect of the arbitration under section 282(11) of the Insurance Act.
Aviva shall pay Mr. Waite interest on the overdue payment of all benefits ordered above, pursuant to section 46(2) of the Schedule.
November 16, 2006
David Snider Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Letter dated April 13, 2004, page 1
- Functional Abilities Evaluation dated May 9 and 10, 2001, page 8
- Occupational Therapy Assessment and Employability Analysis, dated December 7, 2004
- Independent Assessment dated January 13, 2001, pages 8 and 10
- Clinical Assessment dated October 22, 2002, page 21
- Ibid., page 21