Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 108

FSCO A03–001739

BETWEEN:

NORBERT J. BOYER Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Eban Bayefsky

Heard: January 16, 17, 18, 19, June 9, 12, 13, 15, 22, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received by: July 7, 2006.

Appearances: Peter Kazdan for Mr. Boyer Mark L.J. Edwards for Allstate Insurance Company of Canada

Issues:

The Applicant, Norbert J. Boyer, was injured in a motor vehicle accident on July 24, 2001.

He applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate terminated weekly income replacement benefits on July 23, 2003. The parties were unable to resolve their disputes through mediation, and Mr. Boyer applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The hearing commenced in January 2006 and resumed in June 2006. Just prior to the resumption, Allstate brought a motion to have the matter adjourned pending receipt of the clinical notes and records of Homewood Health Centre, an in-patient treatment facility Mr. Boyer attended from April 24 to June 5, 2006. Allstate maintained, in particular, that it required the documents in order to further question Drs. Hoff and Moran, two physicians Mr. Boyer had called in the initial set of hearing days. I denied Allstate’s request, but indicated that the matter could be revisited upon receipt of the relevant documents. The documents were received in time for the resumption (and entered into evidence), but Allstate did not request that Drs. Hoff and Moran be recalled for further cross-examination. The matter proceeded on the basis of the written materials from Homewood.

The issues in this hearing are:

1. Is Mr. Boyer entitled to receive weekly income replacement benefits from July 24, 2003, pursuant to section 5 of the Schedule?
2. If Mr. Boyer is entitled to further income replacement benefits, should the deduction of his post-accident income be calculated on the basis of either his 2004 business expenses or the assistance he received from his wife in 2003 and 2004, pursuant to section 6(2) of the Schedule?
3. Is Mr. Boyer entitled to receive a medical benefit for services provided by Dr. Hoff, in the amount of $13,080, pursuant to section 14 of the Schedule?
4. Is Allstate liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Boyer, pursuant to section 282(10) of the Insurance Act?
5. Is Mr. Boyer entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?
6. Is either party entitled to its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Result:

1. Mr. Boyer is entitled to weekly income replacement benefits from July 24, 2003.
2. The deduction of Mr. Boyer’s post-accident income should not be calculated on the basis of his 2004 business expenses or the assistance he received from his wife in 2003 and 2004.
3. Mr. Boyer is entitled to receive a medical benefit for services provided by Dr. Hoff, in the amount of $13,080.
4. Allstate is liable to pay a special award in the amount of $5,000.
5. Mr. Boyer is entitled to interest on the income replacement benefits that were reduced to 50% (to the extent that interest has not already been paid on this amount), on Dr. Hoff’s outstanding account of $13,080 and on the income replacement benefits owing as of July 24, 2003.
6. If required, the parties may make submissions on the issue of expenses in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Issue 1: Mr. Boyer’s Entitlement to Income Replacement Benefits

Pursuant to section 5(2) of the Schedule, Allstate is not required to pay Mr. Boyer an income replacement benefit for any period longer than 104 weeks of disability, unless "as a result of the accident," Mr. Boyer suffers a "complete inability to engage in any employment for which he...is reasonably suited by education, training or experience."

Mr. Boyer maintained that, as a result of the accident, he suffered significant physical and psychological impairments (notably chronic pain syndrome and/or fibromyalgia) and that, due to these impairments, he was rendered completely unable to engage in any employment for which he was reasonably suited by education, training or experience. Mr. Boyer noted that, despite several attempts, he was not able to maintain gainful employment following the accident due to his injuries. Allstate maintained that Mr. Boyer had similar medical problems prior to the accident and that his claims of disability following the accident were significantly undermined by his lack of credibility.

(i) The Accident

On July 24, 2001, Mr. Boyer was stopped at a red light, and had just begun to shift gears to proceed through the intersection, when he was rear-ended by a dump truck. Mr. Boyer described the impact as a "big bang from behind, like an earthquake" and said that the truck hit him two or three more times as it kept moving forward. Damage to Mr. Boyer’s car was estimated to be between $5,000 and $9,000. He testified that he was "shaken up," "scared" and "nervous" at the time of the impact, crying at the memory of the accident. He pulled his car over to the side of the road and remained there for about ten minutes, during which time he called his wife to come and assist him, as he was very upset. Mrs. Boyer testified that her husband was "frantic," "panicked" and "in shock" when he called and that she had to instruct him to exchange information with the other driver. She told him that she would come to help him, and while waiting for her to arrive, Mr. Boyer got out of his car and spoke to the other driver, who apparently did not want the police to be called. Mr. Boyer took the driver’s name, address and licence number, after which the driver left. Mr. Boyer’s wife arrived and took him to the Credit Valley Hospital. However, since there would be a long wait to be seen at the hospital, Mr. Boyer and his wife went home.

Mr. Boyer went to a walk-in clinic the following day, where Dr. R. Chen reported that Mr. Boyer suffered from low back and neck pain, and headaches. Dr. Chen reported that Mr. Boyer was in "too much pain" to return to work, and prescribed physiotherapy and Tylenol #2 as needed. On July 26, 2001, Mr. Boyer saw his family physician, Dr. K.G. Sie, who diagnosed cervicogenic headache and cervico-lumbar strain. Dr. Sie noted that Mr. Boyer was in shock at the time of the accident and that he was going to physiotherapy. Dr. Sie noted treatment as two Tylenol #2 tablets every six hours.

On August 21, 2001, at the referral of Dr. Sie, Mr. Boyer had x-rays done of his cervical and lumbar spine. Mr. Boyer was in considerable discomfort during the cervical x-ray, and no definite abnormality was seen. The lumbar x-ray showed "probably some loss of the normal lordotic curve consistent with muscle spasm."

Mr. Boyer acknowledged that he "was stressed" before the accident, but testified that it "was not close" to what he was like following the accident. Mrs. Boyer testified that her husband was "panicked," "anxious" and "not himself" after the accident, that he began to suffer panic attacks, and that it was more than eighteen months after the accident before she was able to get Mr. Boyer driving again. Mrs. Boyer testified that her husband suffered from anxiety, depression and poor concentration in the months and years following the accident. She vaguely remembered that he complained of blurred vision and disorientation as a result of the medication he was on, and that, for example, he would call his dog, but the dog would not be in the room.

Mrs. Boyer said that they had spent a lot of money on self-help books and remedies to deal with Mr. Boyer’s problems, and that they had not done any of this before the accident.

Mr. Boyer testified that he occasionally smoked marijuana before the accident (approximately once a month with friends). He testified that he greatly increased his use of marijuana in the years following the accident, as a means of self-medicating to deal with his pain and depression. However, he said that nothing seemed to help. By at least March 2005, Mr. Boyer was diagnosed as suffering from "marijuana abuse" in addition to chronic pain, post-traumatic stress disorder and depression.

(ii) Mr. Boyer’s Pre-Accident Condition

Mr. Boyer was born in Guyana and came to Canada in 1987 when he was fourteen years old. He went to school, completing Grade 11 and part of Grade 12, and then joined the workforce, working for a few years in restaurants, and then at Lincoln Electric in 1994 as a general labourer.

Mr. Boyer was involved in one minor motor vehicle accident a few years prior to July 2001. He did not sustain any injuries or time off work, and did not make any claims as a result of it.

In August 1996, Mr. Boyer suffered depression for about a week after a fight with his girlfriend at the time, Diane Boyer, who is now his wife.

In May 1999, while working at Lincoln Electric, Mr. Boyer suffered a dislocated right shoulder when a skid fell on him. As a result of this injury, he was off work for approximately six weeks. He attempted to return to work on a graduated basis, but experienced friction with his employer, apparently due to his inability to return to full-time hours. Mr. Boyer testified that he experienced some stress at this time. On October 28, 1999, Mr. Boyer saw his family physician, Dr. Sie, who diagnosed reactive depression. Mr. Boyer left Lincoln Electric in late October 1999 because of these problems, and because he wanted a job closer to where he lived. Mr. Boyer testified that the depression at that time was "temporary stress" and "totally different" to his post-accident condition.

Mr. Boyer began work at Lear Corporation in late November 1999, on the night shift, as a vehicle interior carpet-moulder. Both he and his wife testified that he was no longer receiving treatment for his shoulder or his stress at the time he began at Lear. Dr. Sie saw Mr. Boyer on December 2, 1999 and reported that he had found another job. Dr. Sie did not note that Mr. Boyer had any emotional difficulties at that time. Dr. Sie testified that if Mr. Boyer had had ongoing depression at that time, he would have noted it. While at Lear, Mr. Boyer made approximately $35,000 in 2000 and approximately $24,000 in the first half of 2001 before the accident.

Mr. Boyer testified that his stomach hurt "off and on" while working at Lear, and that he was ultimately diagnosed as suffering from stomach ulcers. In October 2000, he was off work for approximately a week and a half due to these ulcers. Mrs. Boyer testified that Mr. Boyer had had stomach problems for years before this, but that it was never properly treated, although she did testify that Mr. Boyer had been on Losec before.

Mr. Boyer was again off work effective May 25, 2001 (approximately two months before the accident) due to abdominal discomfort, diarrhea, fatigue and dizziness. He reported to Dr. Sie that only the night shift was available to him, that this was "too much pressure" and a "trauma" for him. Between May 29 and June 22, 2001, Dr. Sie diagnosed irritable bowel syndrome and dyspepsia. On June 22, 2001, Dr. Sie made these diagnoses and reported that, on physical examination, Mr. Boyer was "tender all over." Both Mr. Boyer and Dr. Sie testified that this referred to tenderness in the abdomen. Later, in an August 2001 report to Mr. Boyer’s employment disability insurer, Sun Life Assurance Company of Canada, concerning Mr. Boyer’s absence from work in the summer of 2001, Dr. Sie reported that Mr. Boyer suffered from "dyspepsia" related to his "adjustive disorder." Dr. Sie testified that "reactive depression" is now referred to as "adjustive disorder." Dr. Sie testified that Mr. Boyer was confused and depressed at the time, but saw no other signs of depression, and only prescribed medication for Mr. Boyer’s stomach. Dr. Sie reported that Mr. Boyer was "accepting" his having to work the night shift, was waiting for "his turn [on the] day shift" and was "recovering well as time goes on."

In his June 6, 2001 clinical note, Dr. Sie reported Mr. Boyer as saying that he "sometimes heard noises in the brain, like noisy bowel movements." In the August 2, 2001 letter to Sun Life, Dr. Sie reported his June 6, 2001 clinical note as saying that "the night shift is a trauma to him, he said that he heard ‘noises in the brain’ like noisy bowel sound." Mr. Boyer testified that this, in fact, referred to noises from his stomach. Dr. Sie testified that this was related to Mr. Boyer’s irritable bowel syndrome, as well as to the pressure he was experiencing at work. As suggested in two letters dated June 21, 2002 to Mr. Boyer’s representative at the time, Dr. Sie testified that he may have misunderstood Mr. Boyer when he recorded that Mr. Boyer had heard "noises in the brain," but that it was difficult to change the note, and that, in any event, it was consistent with the pressure Mr. Boyer was under at that particular time. Dr. Sie stated that it did not mean that Mr. Boyer was "psychotic" or "unstable mentally." Mrs. Boyer testified that she could sometimes hear Mr. Boyer’s bowels from across the room. Mrs. Boyer said that Mr. Boyer never complained of blurred vision, being disoriented or of hearing voices in his head before the accident.

While off work at this time, Lear laid off Mr. Boyer from June 29 to July 21, 2001, due to "reduced customer demands." Mr. Boyer testified that he was only on Losec for his stomach problems at this time and was "ready to return to work." He returned to his regular job on the night shift on July 22 and July 23, 2001. He testified that he was "feeling good" at this time and that he was "ready to move on." Mrs. Boyer testified that Mr. Boyer was "fine when he went back to work," that the Losec "seemed to help him quite a bit" and that, because he had been off for awhile, he was "looking forward to going to work." On his way to his third shift after the lay-off, on July 24, 2001, he was involved in the motor vehicle accident.

Mrs. Boyer testified that Mr. Boyer had not had any emotional problems before the accident and that he was very active, both socially and physically. Mrs. Boyer was not aware of any time that Mr. Boyer required psychological or psychiatric treatment, other than in 1996 when they "broke up."

(iii) Mr. Boyer’s Post-Accident Condition

On September 14, 2001, Dr. T. Hoff, a psychologist to whom Mr. Boyer’s legal representative at the time had referred him, provided a treatment plan in which he reported that Mr. Boyer suffered accident-related anxiety and depression, post-traumatic stress symptoms, disturbed sleep, headaches and cognitive impairments. Dr. Hoff recommended eight weeks of counselling, which Allstate approved. On September 25, 2001, Dr. Sie noted that Dr. Hoff had called his office and had said that Mr. Boyer suffered from "fibromyalgia." Dr. Sie testified that he concurred with Dr. Hoff’s diagnosis.

On September 27, 2001, Dr. I. Harrington, an orthopaedic surgeon, to whom Dr. Sie had referred Mr. Boyer, reported that "functional overlay [was] a major component here in view of some of the inappropriate findings noted on physical examination." Dr. Harrington referred Mr. Boyer to Dr. R. Roussev, a neurologist, to determine whether there was any organic pathology. On October 15, 2001, Dr. Roussev reported that Mr. Boyer had likely suffered a myoligamentous strain as a result of the accident, but that Mr. Boyer’s reports of extensive pain syndrome seemed "surprising in its extent and protracted nature given the mechanism of the MVA."

On October 5, 2001, at Allstate’s request, Mr. Boyer underwent an assessment by Dr. T. Rindlisbacher, a musculoskeletal specialist. Dr. Rindlisbacher reported that Mr. Boyer appeared to have suffered lumbar and cervical spine strain/sprain as a result of the motor vehicle accident. However, Dr. Rindlisbacher reported that the pattern of findings "strongly supports symptom magnification as evidenced by five out of five positive responses on Waddell’s test" and that there were no objective findings suggestive of "ongoing orthopaedic, rheumatologic or neurologic pathology." Dr. Rindlisbacher concluded that Mr. Boyer was not substantially disabled from performing his pre-accident employment tasks.

Mr. Boyer underwent a whole body bone scan on October 24, 2001, which found "no abnormality…in the neck or thoracolumbar spine…." He underwent an MRI spinal scan on November 14, 2001, which found "minor degenerative disc disease at C6-7, normal otherwise."

On November 23, 2001, Dr. Hoff submitted a further treatment plan, confirming the previous diagnoses, but adding "psychobehavioural signs of post-traumatic fibromyalgia" and "chronic pain." Dr. Hoff recommended further counselling, as well as "behaviour therapy." By letter dated December 17, 2001, Allstate denied this treatment plan, indicating that "based on medical documentation that we have on file," the proposed treatment did not appear to be reasonable and necessary.

On January 17, 2002, Dr. M. Lee, an internist and rheumatologist to whom Dr. Hoff had referred Mr. Boyer, reported that Mr. Boyer was "most likely suffering from post traumatic fibromyalgia…."

On February 13, 2002, Dr. D. Prendergast, a psychologist, conducted a Medical-Rehabilitation DAC assessment to determine the reasonableness and necessity of Dr. Hoff’s November 23, 2001 treatment plan. Dr. Prendergast reported Mr. Boyer as describing a number of experiences that "would be consistent with a psychotic level of functioning," for example, seeing drawings on the wall which were not there, hearing his wife’s voice when she was not in the house, and seeing his brother coming down the stairs even though his brother did not live there. Mr. Boyer testified that he felt that these experiences were due to the medications he was taking, and that he had not had them prior to the accident. Mr. Boyer disputed Dr. Prendergast’s comment that one of Dr. Sie’s notes referred to his "hearing voices in his head." Mr. Boyer testified that he never heard voices in his head before the accident.

Dr. Prendergast reported that he could "find nothing to indicate the presence of a diagnosable psychological condition, which one could attribute to [Mr. Boyer’s] motor vehicle accident of July 24, 2001." Dr. Prendergast stated that Mr. Boyer’s presentation raised "serious questions in this examiner’s mind, as to his authenticity and forthrightness." Dr. Prendergast reported that "in a fashion consistent with a diagnosis of malingering, [Mr. Boyer] performed well within the critical range on several sub-tests during this assessment" and that "if, in fact, [Mr. Boyer was] experiencing some psychotic functioning, this was apparently present pre-accident as noted in a June 6, 2001, family doctor note [referring to his ‘hearing voices in his head’]." Dr. Prendergast concluded that Mr. Boyer’s presentation was likely due to a "combination of both serious psychological disturbance and a conscious attempt to misrepresent" and that, therefore, Dr. Hoff’s recommended treatment was not reasonable or necessary.

At the hearing, Dr. Prendergast acknowledged the "possible discrepancy" between his report that Mr. Boyer "hears things in his head" and Dr. Sie’s (apparent) report that Mr. Boyer had been "hearing voices in his head." Dr. Prendergast acknowledged that Dr. Sie had not, in fact, reported Mr. Boyer as saying that he had been "hearing voices in his head." Dr. Prendergast testified that there was no other evidence of Mr. Boyer being psychotic and that, in any event, whether Mr. Boyer was psychotic before the accident was not particularly relevant to his opinion.

Dr. Prendergast testified that the TOMM memory test he employed (regarding the legitimacy of Mr. Boyer’s complaints) had been developed in relation to people with cognitive impairments, not chronic pain, that malingering should never be determined solely on the basis of TOMM test results and that the test was "not a substitute for clinical judgment." Dr. Prendergast acknowledged that Mr. Boyer’s performance on both the TOMM and the REY memory tests could have been due to headaches, concentration problems and lack of trust. Dr. Prendergast testified that he had not, in fact, diagnosed Mr. Boyer as malingering, simply as behaving "consistently" with malingering. Dr. Prendergast testified that "for whatever reasons," Mr. Boyer did not participate in the examination, that this did not mean that he did not have serious emotional problems and that, "to some extent," there was "not enough information to make a psychological assessment."

On February 18, 2002, at the request of Allstate, Mr. Boyer underwent an assessment by Dr. L. Koepfler, a psychologist. Dr. Koepfler reported that she had "serious reservations about the veracity of Mr. Boyer’s complaints." However, she also stated that, "to the extent that Mr. Boyer [was] accurately reporting his symptoms, he [met] the criteria for a Pain Disorder with Psychological Factors and Major Depressive Episode," was substantially unable to perform his pre-accident employment and should not engage in a "modified return to work plan until…given the opportunity to participate in an intensive multidisciplinary functional restoration and pain management program." Dr. Koepfler also stated that if Mr. Boyer continued to present with "rather bizarre and exaggerated symptom complaints, and if he [was] unsuccessful in a functional restoration program, [she] would recommend a psychiatric assessment and review of his current medications." On April 15, 2002, after reviewing Dr. Prendergast’s report, Dr. Koepfler added that her recommendation for a multidisciplinary treatment programme "stemmed from [her] determination to give the client the benefit of the doubt and [her] desire to obtain more behavioural information concerning [Mr. Boyer’s] true level of functioning and motivation." Dr. Koepfler stated that there was "nothing in Dr. Prendergast’s report that [she] would disagree with strongly."

On April 10, 2002, Dr. Sie saw Mr. Boyer and made the following note: "upset, crying, the insurance co will cut off his payment. His problem is derived from his depression in June 2001 when he was off work, unable to handle night shift." Mr. Boyer testified that his pre-accident depression was "small" compared to what it was after the accident. Dr. Sie reported and testified that his April 10, 2002 note referred to the insurance company’s position that Mr. Boyer’s depression was derived from the June 2001 work problem, that Mr. Boyer’s depression "went away" when he returned to work before the motor vehicle accident and that his subsequent depression was related to the accident, not at all to the previous work situation. Dr. Sie testified that Mr. Boyer only had minor irritable bowel symptoms after the accident and that his main problems were pain and fibromyalgia.

On May 3, 2002, Dr. Hoff reported that, "in contrast to the opinion of a recent DAC assessor, nothing in [Mr. Boyer’s] presentation has suggested to me that he is malingering or being deceitful about the impact of the motor vehicle accident upon him." Dr. Hoff noted that, in the months preceding the accident, Mr. Boyer was functioning in the "65-70 (high mild) range" and that he was currently at "about 55 (mid-moderate range)." Dr. Hoff stated that Mr. Boyer would "likely not benefit from instruction in pain management using psychological techniques until such time as he [had] further stabilized emotionally." Dr. Hoff stated that any symptom magnification by Mr. Boyer was "entirely consistent with the emotional upheaval and hypersensitivity that comprise posttraumatic stress and the psychobehavioural aspects of posttraumatic fibromyalgia." Dr. Hoff stated that, "given how the IME and DAC assessments unfolded," he regretted that he did not "coach Mr. Boyer on how to present himself" during such examinations and that "the outcome of the recent assessments require[d] that [he]…train Mr. Boyer about faking better so that he not again be suspected of faking bad during future assessments." Mr. Boyer testified that Dr. Hoff did not train him how to behave during medical assessments, and that he did not need to "fake" his condition in light of "what he was going through."

At the hearing, Dr. Hoff testified that, based on his treatment of Mr. Boyer, Mr. Boyer had performed poorly on the TOMM memory test because of his "defensive posture" towards the Insurer’s medical assessors and because this, coupled with his personality type, would compromise his ability to think clearly and to concentrate during the test. Dr. Hoff stated that Dr. Rindlisbacher’s finding of symptom magnification was simply another example of Mr. Boyer’s being "overwhelmed, intimidated and passive." Dr. Hoff said that Mr. Boyer was not a malingerer and was a person of "high integrity." Dr. Hoff testified that, despite what he wrote in his May 2002 report, he did not teach or coach Mr. Boyer on how to "fake" his condition or how to present himself during assessments. Dr. Hoff stated that these comments were written out of "frustration that Mr. Boyer was not getting the services he deserved," that this was simply his "way of speaking" (which was "perhaps a personal weakness") and that "in the future, [he] will be wiser." Dr. Hoff said that he did not conduct any psychological tests on Mr. Boyer, partly because Mr. Boyer was too traumatized to provide credible test data and Dr. Hoff did not want to traumatize him further, and partly because Dr. Hoff did not have sufficient time to conduct these tests. Dr. Hoff stated that he did not diagnose fibromyalgia because he was not qualified to do so; however, he suspected it and, therefore, referred Mr. Boyer to Dr. Lee.

Dr. Hoff denied that, based on what he had written on his website (for example, that "what seems helpful to these unfortunate clients is the more holistic idea that the collision led to shock and trauma that has affected their selfhood deeply…."), he had a preconceived notion that motor vehicle accident victims would suffer from fibromyalgia and chronic fatigue syndrome. Dr. Hoff acknowledged remarks he made in a March 31, 2003 letter to the Insurer concerning his "advocacy on behalf of Mr. Boyer," but said that this was simply his "style of rhetoric" and still believed that Mr. Boyer was "of good character." In his letter, Dr. Hoff stated that he "rarely" receives "manipulative and dishonest" referrals, and at the hearing, he said that he "does not get" these types of patients.

On September 11, 2002, on a referral from Dr. Hoff, Dr. D. Saul, a specialist in fibromyalgia, reported that he saw Mr. Boyer on July 4, 2002 and felt that he suffered from post-traumatic fibromyalgia and post-traumatic stress disorder as a result of the motor vehicle accident. Dr. Saul stated that Mr. Boyer was totally disabled from work.

On November 27, 2002, Dr. V. Ali, a psychologist who saw Mr. Boyer on the referral of Dr. Sie, reported that although psychological therapy and pain management were strongly indicated for Mr. Boyer, "his current level of functioning…likely exclude[d] him as a suitable candidate." Dr. Ali recommended that Mr. Boyer continue his treatment with Dr. Hoff, with a "strong focus on a behavioural approach with regard to encouraging the patient to be more actively involved."

On February 8, 2003, Dr. P. Moran, a psychiatrist, reported that Mr. Boyer had presented at the emergency department of Credit Valley Hospital "complaining of depressed mood and thoughts of overdosing." Dr. Moran’s impression was that Mr. Boyer "suffered from chronic pain disorder with physical and psychological features…[which included chronic] post-traumatic stress disorder…and a major depressive episode with psychosis and suicidal ideation." Dr. Moran admitted Mr. Boyer to the hospital’s inpatient psychiatry unit. On January 5, 2004, Dr. Moran provided a Disability Certificate in which he reported that Mr. Boyer continued to suffer from post-traumatic stress disorder, major depression, chronic pain disorder and fatigue.

In February and March 2003, Mr. Boyer underwent a multi-disciplinary Disability DAC assessment. He was assessed by a physiatrist, a neurologist, a psychiatrist, a physiotherapist and a kinesiologist. The assessment team concluded that Mr. Boyer was not, as a result of the motor vehicle accident, substantially disabled from performing the essential tasks of his pre-accident employment as a machine operator/moulder. The "physical assessors" commented on the discrepancies and pain-focussed behaviours in Mr. Boyer’s presentation and concluded that there was no objective evidence of a disabling medical condition. Dr. J. O’Riordan, the assessing psychiatrist, reported that the diagnosis for Mr. Boyer "lies between chronic pain disorder with psychological factors…and malingering."

Dr. O’Riordan noted that, according to the DSM-IV description of malingering, "malingering should be strongly suspected if any combination of the following is noted: (1) medical/legal context or presentation, such as the person is referred by an attorney to the information for examination; (2) marked discrepancy between the person’s claimed stress or disability and the objective findings; (3) lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen; and (4) the presence of antisocial personality disorder. Dr. O’Riordan reported that, while Mr. Boyer met "most of the criteria for a chronic pain disorder with psychological factors," the "presence of three of the factors related to malingering" made him "suspect that [Mr. Boyer] in fact [was] a mixed deceiver [that is, a person who has aspects of malingering and who believes their own deceptions]." Dr. O’Riordan, therefore, stated that he could not support a diagnosis of chronic pain disorder with psychological factors, or find that the accident rendered Mr. Boyer medically disabled.

At the hearing, Dr. O’Riordan testified that he did not have a lot of experience treating chronic pain patients. He said that, while he had never seen the degree of uncooperativeness that he saw in Mr. Boyer, he understood that people in Mr. Boyer’s condition will have a certain amount of exaggeration. Dr. O’Riordan addressed three of the criteria on malingering as follows: (1) a medical/legal context would apply to every case involving litigation; (2) a person’s pre-accident history and other diagnoses such as depression and chronic pain would be relevant to assessing discrepancies in a person’s presentation; and (3) malingerers do not seek out treatment and, therefore, if Mr. Boyer complied with prescribed treatment and used self-help techniques to improve, this would undermine the criteria of uncooperativeness. Dr. O’Riordan stated that, while the DSM-IV contained criteria for malingering, it did not contain the concept of "mixed deceiver" by which he rejected a diagnosis of chronic pain disorder with psychological factors. Dr. O’Riordan acknowledged that in February 2005, he felt the START programme (an outpatient programme in the mental health department of Credit Valley Hospital in which Mr. Boyer had participated in the summer of 2003) might be appropriate for Mr. Boyer.

Mr. Boyer underwent an Attendant Care DAC assessment in mid-March 2003. The physiatrist, Dr. M. Devlin, the occupational therapist, Ms. L. Cottrell, and the Registered Nurse, Ms. J. Curitti, found that Mr. Boyer did not suffer from physical, accident-related impairments that would warrant his receiving attendant care assistance.

Mr. Boyer testified that he was in two motor vehicle accidents following the July 2001 accident, the first in January 2004 and the second in November 2004. In the first, he was hit by a school bus while stopped at a red light. Mr. Boyer stated that he was not sure if he made a claim to Allstate for this accident. He said he underwent treatment for two to three months, after which he returned to his previous condition. In the second accident, he was rear-ended, and experienced some aggravation of his neck and back pain, but did not undergo treatment. Mrs. Boyer testified that Mr. Boyer was "upset" by these accidents, but that she did not believe that they made him any worse than he already was.

On January 7, 2005, Dr. Hoff reported that Mr. Boyer continued to suffer from post-traumatic stress disorder and a major depressive disorder, and that his presentation remained consistent with the psychobehavioural aspects of post-traumatic fibromyalgia. Dr. Hoff stated that "symptom magnification due to posttraumatic stress [was] of course evident…, but issues such as malingering and deceit are not factors…."

On November 15, 2005, on a referral from Mr. Boyer’s counsel, Dr. W. Pruzanski, a rheumatologist and clinical immunologist with a special interest in fibromyalgia and chronic pain syndrome, reported that, while he could not find evidence of fibromyalgia in Mr. Boyer, he detected substantial tenderness in Mr. Boyer’s right shoulder and right lateral cervical area, marked tenderness in the lumbar spine with equivocal right Lasegue sign, and hypertension. Dr. Pruzanski concluded that Mr. Boyer suffered a complete inability to engage in any employment for which he was reasonably suited, and recommended further investigation.

On December 1, 2005, on a referral from Mr. Boyer’s counsel, Dr. S. Wong, a physiatrist, reported that, as a result of the accident, Mr. Boyer suffered moderate myofascial injury of the cervical spine levator scapulae muscle and scalenes muscles, mild myofascial injury of the thoracic spine rhomboid muscles and levator scapulae muscles, moderate myofascial injury of the sacral spine gluteal muscles with referred pain to the lumbar spine, post-traumatic insomnia, post-traumatic psychological problems with depression, and chronic pain syndrome complicated with insomnia and stress problems. Dr. Wong found that Mr. Boyer would be "required to look for a sedentary type of work in the future because of his permanent injuries," that "these impairments [would] continue to affect his ability to compete with other able-bodied individuals for work in the future," and that he would "experience difficulty obtaining employment, maintaining employment and advancing his future career."

On December 2, 2005, on a referral from Mr. Boyer’s counsel, Dr. J. Salmon, a neuropsychologist, reported that "Mr. Boyer’s profile [was] consistent with Major Depression, chronic Pain Disorder Associated with A General Medical Condition and Psychological Factors and with In-Vehicular Phobia." Dr. Salmon found that Mr. Boyer demonstrated "extremely poor work stamina, work activity pacing/persistence, and sustained attention/concentration" and that these factors, coupled with his "overall demeanor and lack of behavioural control uniquely hamper[ed] his ability to meaningfully engage in either part-time or full-time work that would otherwise be reasonably suited to him."

At the hearing, Dr. Salmon testified that Mr. Boyer’s pre- and post-accident symptoms were significantly different, that the motor vehicle accident was the main aggravating factor in the development of Mr. Boyer’s chronic pain syndrome and that there was "no evidence whatsoever" of malingering, particularly in light of Mr. Boyer’s attempts to return to gainful employment. Dr. Salmon said that he conducted "symptom validity tests" on Mr. Boyer and that they were "satisfactory." While Dr. Salmon acknowledged that Mr. Boyer’s pre-accident medical history was not "unremarkable" as indicated in his report, he testified that the information he subsequently reviewed concerning Mr. Boyer’s pre-accident problems did not change, and in fact confirmed, his view that Mr. Boyer’s post-accident symptoms were more serious and prolonged than before the accident, and that the accident was the principal cause in the development of his chronic pain disorder. In relation to Dr. Harrington’s observation of functional overlay, Dr. Salmon testified that it was "not uncommon to have inconsistencies in this situation." Dr. Salmon acknowledged that, prior to the accident, Mr. Boyer likely earned less than the $50,000-$60,000 a year noted in his report and that Mr. Boyer should, therefore, not be looking for a job which paid that amount.

On December 16, 2005, Dr. Moran (who had first seen Mr. Boyer at Credit Valley Hospital in February 2003 on an emergency basis) reported that Mr. Boyer continued to suffer from chronic pain disorder, compounded by ongoing chronic depression, anxiety, insomnia and depersonalization. Dr. Moran stated that Mr. Boyer remained chronically distressed "despite regular psychotherapy from psychologist Dr. Hoff, an intensive outpatient psychiatric rehabilitation program at Credit Valley Hospital and ongoing psychopharmacotherapy supervised by myself." Dr. Moran reported that, from a psychiatric perspective, Mr. Boyer displayed a complete inability to engage in any employment for which he was reasonably suited by education, training or experience. Dr. Moran stated that, "if any further improvement or significant rehabilitation [was] to be brought about for Mr. Boyer’s significant psychiatric disorders, this would require an intensive inpatient treatment of at least 8-10 weeks at the Homewood Health Centre in Guelph."

At the hearing, Dr. Moran testified that, while Mr. Boyer suffered from dyspepsia, anxiety and depression before the accident, there were no major psychiatric problems that would affect or interfere with his diagnosis. Dr. Moran said that Mr. Boyer had, in fact, returned to work before the accident, but that given that he had some pain disorder pre-accident and had a dependent personality style, he was vulnerable to developing, and did develop, a serious chronic pain disorder as a result of the motor vehicle accident. Dr. Moran described the accident as the "straw that broke the camel’s back" and as the "precipitating event" in Mr. Boyer’s current condition.

Dr. Moran said that Mr. Boyer’s presentation was real, both physically and emotionally, and that there was no basis to suspect malingering. Dr. Moran testified that there were no tests for a physician to determine malingering. He stated that he would not do the tests conducted by Dr. Prendergast (and stated to be "specifically designed to detect for malingering" - the REY and TOMM Memory Tests) because he (Dr. Moran) was not a psychologist. Dr. Moran stated that the two noted tests were not valid for someone with chronic pain syndrome because they pre-dated neuroimaging MRIs, although he acknowledged that the diagnostic imaging tests of Mr. Boyer (including a total body scan MRI) were essentially normal. Dr. Moran stated that, in relation to the TOMM Memory Test, people with chronic pain disorder have significant problems with memory and concentration.

Dr. Moran testified that, while he had not been aware of Dr. Sie’s note about Mr. Boyer hearing noises in his head at the time of his assessment, he did take Mr. Boyer’s psychosis (i.e. his hearing voices) into account in his diagnosis of chronic pain syndrome. Dr. Moran stated that Dr. Harrington’s finding of "functional overlay" did not mean that Mr. Boyer had given an "inappropriate response" and that Dr. Harrington’s findings were common in chronic pain disorder patients. Dr. Moran testified that Dr. Rindlisbacher’s findings of symptom magnification under the Waddell Test, and the FAE’s findings of lack of objective findings, were "classic features" of chronic pain syndrome and that the course of Mr. Boyer’s condition was a "classic unfolding" of chronic pain syndrome. In relation to Mr. Boyer’s use of marijuana following the accident, Dr. Moran testified that individuals often resort to marijuana to deal with the effects of chronic pain.

On Dr. Moran’s referral, Mr. Boyer underwent the inpatient programme at Homewood Health Centre from April 24 to June 5, 2006. Mr. Boyer’s diagnoses on discharge were chronic pain syndrome, THC abuse, major depression, generalized anxiety disorder, history of panic disorder (in remission) and post-traumatic stress disorder. Mr. Boyer’s "global assessment of functioning" was stated to be 40 at the time of admission and 55 at the time of discharge.

(iv) Mr. Boyer’s Post-Accident Attempts to Work

Mr. Boyer testified that he did not try to return to his pre-accident job at Lear because he could not do it and because his doctors had not cleared him to return, since there were no light-duty jobs there.

Mr. Boyer attempted to do various other jobs post-accident. He worked for two days in July 2003 at Behr Paints loading skids for delivery, but had to stop because of back pain. For a brief period in late 2001 and early 2002, he and his wife were involved in buying and selling perfumes, primarily to people known to Mrs. Boyer. Mrs. Boyer testified that this was her business.

Mrs. Boyer testified that, in August 2003, she looked in the paper for something her husband could do, and found him a job as a self-employed courier for CRL, where he would be independent. Mr. Boyer said he worked three to four days per week, from 2:00 p.m. to 7:00 p.m., picking up his wife at 4:00 p.m. who helped with driving and picking up envelopes. Mr. Boyer testified that he had difficulty concentrating, and experienced back pain getting in and out of the car. He said that he used to call his wife a lot for help while she was at home for a year on maternity leave (from November 2003 to November 2004).

Mrs. Boyer said that, when her husband started the courier job, he would pick her up from her own work and they would do the pick-ups and deliveries together, with Mr. Boyer essentially acting as her assistant. Mrs. Boyer said that Mr. Boyer was slow in looking up delivery locations on the map. She said that, during her maternity leave, she had to force him to go to work and that she had to continue to assist him, because he would constantly call her on the phone to ask for directions. Mrs. Boyer went back to work herself in November 2004, after which Mr. Boyer tried to continue working on his own, but had to give up the job in January 2005, due to his pain and depression. Mrs. Boyer testified that Mr. Boyer would often be disoriented, panicky and in pain, and would call her constantly at her office for directions. She said that he could not do the job without her help.

Mr. Boyer reported gross business income of $14,007 in 2003 and gross commission income of $24,985 in 2004. Mrs. Boyer testified that their accountant made a mistake in not noting business expenses on the 2003 income tax return. She said that she was not aware that they needed to file a Statement of Business Affairs if they earned business income.

In the summer of 2005, Mr. Boyer tried driving an ice cream truck, two days a week, but had to give up this job as well, because it was too hard. Mrs. Boyer testified that she helped her husband to do this job as well, and that Mr. Boyer was anxious and panicky when there were line-ups at the truck.

Mr. Boyer worked for one day delivering newspapers for the National Post, but discontinued the job because he had trouble delivering the papers on time, due to his problems concentrating and due to his pain in getting in and out of his car. Mr. Boyer attempted to obtain a job as a school bus driver, but did not qualify because of his history of medication use.

(v) Findings

Mr. Boyer’s Credibility

I found Mr. Boyer to be a credible witness, openly addressing his experiences both before and after the accident. While Mr. Boyer often responded emotionally to questioning, breaking down several times while testifying, I find that this did not diminish the essential veracity of his testimony and, in fact, confirmed much of the medical evidence on the nature and extent of his post-accident condition. I also find that Mr. Boyer credibly reported his medical and employment history to the various assessors he saw. While there were some discrepancies in this regard, I find that they were relatively minor, were not germane to his claim for income replacement benefits and were largely explained by his psycho-emotional state following the accident. I find that Mr. Boyer’s presentation at the various medical assessments was a function of the combined physical and emotional sequelae of the accident.

I find that Mr. Boyer generally reported the circumstances of the accident, as well as his pre- and post-accident medical and employment history, consistently. Mr. Boyer was forthright, both to the assessors and at the hearing, about his pre-accident medical condition, explaining his work-related injuries, his physical and emotional symptoms, and the timing of these problems. I find that Dr. Sie’s reports and records, as well as Mrs. Boyer’s testimony, corroborated Mr. Boyer’s description of the nature and extent of his pre-accident medical and employment situation, as well as the course of his post-accident condition.

The only potentially significant inconsistency concerning the circumstances of the accident involved Dr. Harrington’s September 2001 report that, after the accident, Mrs. Boyer drove Mr. Boyer to Credit Valley Hospital "where X-rays of his neck and back were obtained." Dr. Harrington reported Mr. Boyer as saying that he was "examined by a specialist but does not recall his name" and that the specialist recommended further testing, such as a bone scan or CT scan, but that neither had been carried out. This version of events does not appear anywhere else in the evidence. Mr. Boyer was not questioned about this at the hearing. Dr. Harrington did not testify. None of the records from Credit Valley Hospital indicate that he attended there and/or was seen by a specialist on the day of the accident. In the absence of further evidence on this matter, I am not prepared to find that Mr. Boyer received medical attention at Credit Valley Hospital on the day of the accident.

There were only a few instances in which Mr. Boyer may not have fully disclosed his medical history, and, as noted, these instances were relatively minor. In October 2001, Dr. Rindlisbacher reported that Mr. Boyer had not been involved in any previous motor vehicle accidents, as having no previous neck or back pain and as only having suffered a foot injury when he was young and a shoulder injury at work. Mr. Boyer testified that he had been in a minor accident a few years prior to July 2001, but did not suffer any injuries. There is no evidence to suggest that the accident was of any consequence. Mr. Boyer had reported neck and back pain in May 1999, but this was in the context of, and related to, the shoulder injury. Mr. Boyer testified that he could not recall if he mentioned his pre-accident absences from work. I accept that Mr. Boyer did not intend to conceal these problems, given his relatively consistent reporting of them to the various other assessors he saw.

For example, he told Dr. Roussev ten days after seeing Dr. Rindlisbacher that he had suffered from "peptic ulcer disease," in addition to having had a foot injury and partial amputation when he was a child. In January 2002, he mentioned his problem with ulcers and his foot injury to Dr. Lee, but neglected to mention his shoulder injury. In December 2005, Dr. Salmon reported that Mr. Boyer’s "medical history in adulthood was unremarkable" and that he only saw a psychologist for one session "secondary to stress when he dislocated his shoulder." Mr. Boyer explained that he may not have mentioned his pre-accident ulcers and stress because he has been forgetful since the accident and his problems were "small" compared to what they were following the accident. I find this to be a relatively minor and unintentional omission, particularly in light of his having disclosed his previous problems with work-related ulcers to virtually all of the other assessors. I do not find it significant that Mr. Boyer did not mention all of his previous medical problems to each of the assessors he visited.

I note that Homewood’s clinical notes for May 31, 2006 indicate that, despite his "drug screen [being] positive for opiates," Mr. Boyer denied using any medications in addition to those prescribed for his use during his recent weekend pass. The clinician noted that Mr. Boyer "repeatedly used his poor memory as a reason for not disclosing his opiate use." As indicated earlier, Homewood’s clinical notes and records became available just prior to the resumption of the hearing. Allstate did not seek to have Mr. Boyer recalled to address this information, nor did it seek to have anyone from Homewood testify about this particular note. In the absence of further evidence concerning the circumstances of the incident, or the significance of Mr. Boyer’s conduct in the context of his treatment at Homewood, and of his overall medical condition, I do not find that this alters my general assessment of Mr. Boyer’s credibility.

Dr. O’Riordan reported that, as part of the 2003 Disability DAC, Mr. Boyer "did not report himself any significant past medical history" and that he "made it clear that in his own perception he was a very fit, active and healthy man." Again, I find that this was a function either of Mr. Boyer’s emotional difficulties following the accident (as discussed more below) or his view that the accident had had a profound effect on his physical and psychological well-being. I note as well that Mr. Boyer reported the shoulder injury and peptic ulcer to two of the other DAC assessors. I, therefore, do not find that Mr. Boyer was intentionally seeking to mislead the assessors about his pre-accident medical history.

There were two other relatively small areas in which Mr. Boyer’s evidence was somewhat inconsistent. The first concerned his status as a smoker or non-smoker. In December 1999, Dr. J. Kell reported that Mr. Boyer was "an occasional smoker." In October 2001, Dr. Roussev reported that Mr. Boyer was a non-smoker. In January 2002, Dr. Lee reported that Mr. Boyer had a "10-pack-year smoking history and that he currently smokes about three cigarettes per day." In November 2002 and November 2005, respectively, Dr. Ali and Dr. Pruzanski reported that Mr. Boyer was a non-smoker. In June 2006, the Homewood Discharge Summary reported Mr. Boyer as being a non-smoker (aside from his use of marijuana). There is no evidence as to when Mr. Boyer might have smoked a pack a day for ten years, as reported by Dr. Lee. Nor do I see any significance in whether Mr. Boyer reported himself as smoking occasionally or as being a non-smoker.

The more significant issue is Mr. Boyer’s use of marijuana, and he has been open about this problem both following the accident and at the hearing. The possible exception to this is in Dr. Salmon’s evidence. Dr. Salmon testified that Mr. Boyer said he did not use drugs or alcohol prior to the accident. However, in his report, Dr. Salmon noted Mr. Boyer as saying that he had "some marijuana intake secondary to pain and depression, on a daily basis now but apparently not prior to the accident." In my view, it is unclear whether Mr. Boyer was denying any drug use prior the accident or, as he has maintained throughout, that his use of marijuana (as well as his general medical condition) was substantially less serious than it was following the accident. Given the discrepancy in Dr. Salmon’s evidence, and given the other evidence on this matter, I am not prepared to find that Mr. Boyer was attempting to conceal or misrepresent his pre-accident use of marijuana.

Regarding Mr. Boyer’s reporting of his employment history, the only potentially significant discrepancy is in Dr. Salmon’s December 2005 report. Dr. Salmon only specifically noted Mr. Boyer as having one post-accident job, namely, that of operating an ice cream truck in the summer of 2005. Dr. Salmon testified that he was not aware that Mr. Boyer had earned significant income as a courier. Mr. Boyer testified that, due to his psycho-emotional difficulties, he forgot to tell Dr. Salmon about his work as a courier. However, Dr. Salmon’s report states that "Mr. Boyer reports that he has also worked at Benair Paint [Behr Paints] and in paper deliveries, in mail delivery, at McDonald’s and St. Hubert, and in other small jobs during high school." Mr. Boyer seems to have identified all of his jobs, both pre- and post-accident. Neither Mr. Boyer’s nor Dr. Salmon’s testimony clarifies whether Mr. Boyer identified the courier job as something he did before the accident. Nor is it clear whether he was attempting to report that he had only done one job following the accident or that his time operating the ice cream truck was simply his most recent attempt to return to work. Given his disclosure of the various jobs he did, the uncertainty about the information he conveyed to Dr. Salmon, and the general medical evidence about his cognitive difficulties, I do not find that Mr. Boyer attempted to conceal or misrepresent the nature of his post-accident employment.

Some of the assessors questioned the veracity of Mr. Boyer’s complaints. However, I find that these opinions contained a number of weaknesses and, in any event, were outweighed by the opinions of the assessors who found Mr. Boyer’s presentation to be consistent with chronic pain syndrome and/or fibromyalgia.

Dr. Harrington found "functional overlay" but this was only in respect of "inappropriate findings noted on physical examination" and (as with the other physical assessors in this case) did not take into account the psycho-emotional nature of chronic pain syndrome and/or fibromyalgia (as noted, for example, by Dr. Moran). Dr. Roussev simply found Mr. Boyer’s complaints of extensive pain "surprising" given the nature of the accident, and still found that Mr. Boyer had likely suffered a myoligamentous strain as a result of the accident. Dr. Rindlisbacher found "symptom magnification" based on Waddell’s test, but Dr. Rindlisbacher did not address Dr. Moran’s comment that Dr. Waddell had "taken a step back from his own test" and that the lack of objective findings and symptom magnification were, in fact, typical features of chronic pain syndrome.

Dr. Prendergast questioned Mr. Boyer’s "authenticity and forthrightness" and found his presentation to be "consistent with a diagnosis of malingering." However, at the hearing, Dr. Prendergast acknowledged both his misunderstanding of Dr. Sie’s clinical note concerning Mr. Boyer having heard things in his head and that there was no other evidence supporting his previous suggestion that Mr. Boyer was psychotic. Dr. Prendergast acknowledged the limitations of the memory tests he employed, both generally and in relation to Mr. Boyer’s particular circumstances, noting that he had not, in fact, diagnosed (and essentially could not diagnose) Mr. Boyer as malingering. I find that this evidence significantly undermined Dr. Prendergast’s conclusion that Mr. Boyer’s condition was due to a combination of a "serious psychological disturbance" and a "conscious attempt to misrepresent."

Dr. Koepfler had "serious reservations" about the veracity of Mr. Boyer’s complaints. However, she also made extensive positive findings "to the extent that Mr. Boyer [was] accurately reporting his symptoms." In my view, Dr. Koepfler did not conclude one way or the other whether Mr. Boyer’s presentation was genuine. Dr. Koepfler subsequently stated that she sought to give Mr. Boyer the "benefit of the doubt." However, she also stated that she wished to obtain additional behavioural information concerning the "true level of Mr. Boyer’s functioning and motivation." Again, I find that Dr. Koepfler was not stating her view one way or the other about the veracity of Mr. Boyer’s complaints. I also find significant that, despite her concerns, she made key findings that Mr. Boyer suffered from "pain disorder with psychological factors and major depressive episode," that he was substantial unable to perform his pre-accident work, and that he should not begin a modified work plan until he participated in an intensive multidisciplinary functional restoration and pain management programme. In my view, this was much more than giving Mr. Boyer the benefit of the doubt.

Dr. O’Riordan also gave an inconclusive diagnosis, stating that it lay "between chronic pain with psychological factors…and malingering." He also acknowledged that he was not particularly experienced in treating patients with chronic pain, that the three criteria he addressed for malingering were either irrelevant or inapplicable to Mr. Boyer’s particular situation, and that the DSM-IV did not contain the very diagnosis upon which he rejected Mr. Boyer’s claims (namely, "mixed deceiver"). As with Dr. Koepfler, I find significant that, despite his concerns with the legitimacy of Mr. Boyer’s complaints, Dr. O’Riordan supported Mr. Boyer’s participation in the START programme.

In addition to the problems in these assessors’ evidence, I find the evidence of Drs. Hoff, Salmon and Moran to be more persuasive on the issue of Mr. Boyer’s credibility. Unlike the other assessors, Drs. Hoff, Salmon and Moran specifically considered the psycho-emotional elements of chronic pain syndrome and fibromyalgia in assessing the nature and veracity of Mr. Boyer’s symptoms. For example, I accept Dr. Hoff’s view that Mr. Boyer’s emotional response to the accident would explain his presentation during the assessments. I note that, during his testimony, Mr. Boyer became distraught when remembering the circumstances of the accident and the effect it had had on his life. Dr. Salmon understood that Mr. Boyer’s condition was a combination of pain and behavioural symptoms, finding satisfactory validity tests and no evidence of malingering. I find particularly significant Dr. Salmon’s observation that Mr. Boyer’s attempts to return to gainful employment undermined any finding of malingering. In this regard, I note Dr. O’Riordan’s comment at the hearing that malingerers do not seek out treatment and that Mr. Boyer’s compliance with prescribed treatments, and his attempts to rehabilitate himself, would undermine the DSM-IV criterion of uncooperativeness. Dr. Moran noted that chronic pain syndrome can significantly interfere with memory and concentration, and that this would, in turn, affect the reliability of the tests Dr. Prendergast administered to determine the legitimacy of Mr. Boyer’s complaints. I accept Dr. Moran’s comment to the effect that Mr. Boyer’s presentation was real, both physically and emotionally.

Finally, I note the "surveillance summary" of Crown Investigations concerning observations of Mr. Boyer on December 8 and 9, 2001 (roughly four and a half months after the accident). Apparently Mr. Boyer was only observed to be active on December 9, 2001 (while attending a Tim Horton’s for breakfast) and at that time "displayed stiffness in his gait and appeared to be favouring his lower back." No other surveillance information was introduced at the hearing. While limited in nature, I find that this evidence corroborates Mr. Boyer’s complaints of low back pain following the accident, and, to the extent possible, supports the view that Mr. Boyer suffered from physical, as well as emotional, symptoms as a result of accident.

The Cause of Mr. Boyer’s Disability

I find that the July 2001 motor vehicle accident materially contributed to Mr. Boyer’s disability. I find that, while Mr. Boyer had certain medical problems before the accident, he suffered different and more serious difficulties following and as a result of the accident.

Prior to the accident, Mr. Boyer suffered work-related stress and/or depression in October 1999, October 2000 and May-July 2001. As a result of these problems, he left his job at Lincoln Electric in October 1999, and was off work from Lear Corporation for a week in October 2000, as well as approximately six weeks in the two months immediately preceding the accident. Mr. Boyer’s scheduled lay-off from Lear in the summer of 2001 ended July 21, 2001, at which time Mr. Boyer returned to his regular duties.

While Mr. Boyer may still have been on medication for his ulcers at the time he returned to work in July 2001, I accept the uncontradicted evidence of Mr. Boyer, Mrs. Boyer and Dr. Sie that he was feeling good at the time and was ready to carry on with his job. I find significant that Mr. Boyer last sought medical treatment a month before the accident. I heard no evidence that Mr. Boyer did not properly carry out his duties in the two shifts he did just prior to the accident or that he had not otherwise been a conscientious worker in his time at Lear. Therefore, while (as suggested by Dr. Hoff in May 2002) Mr. Boyer might have been functioning at a somewhat diminished level at the time he returned to work, I find that, if the accident had not occurred, he would have carried on with his regular duties, with only the possibility of requiring some time off in the future as he dealt with the challenges of the night shift and awaited his turn on the day shift.

The parties spent a considerable amount of time on the meaning of Dr. Sie’s June 6, 2001 note concerning Mr. Boyer hearing "noises in the brain, like noisy bowel movements." I do not attach any particular significance to this piece of evidence. This was at most (as Dr. Sie testified) a function of the stress Mr. Boyer was under at the time. However, based on Mr. and Mrs. Boyer’s testimony (as well as that of Dr. Sie), I find it likely that the sounds Mr. Boyer was hearing were related to his irritable bowel syndrome and dyspepsia. As acknowledged by Dr. Prendergast, there is no suggestion that Mr. Boyer was hearing voices in his head prior to the accident. Therefore, as Dr. Prendergast suggested, and as Dr. Sie testified, there was no evidence that Mr. Boyer was psychotic or mentally unstable prior to the accident. I, therefore, find that Dr. Sie’s isolated note does not alter the essential nature of Mr. Boyer’s pre-accident condition, namely, that he suffered from work-related stress and/or depression, ulcers, irritable bowel syndrome and dyspepsia, resulting in some time off of work, but returning to his regular duties, ready to carry on to the best of his ability.

I find that Mr. Boyer was physically and emotionally injured as a result of the July 2001 accident. Based on the initial findings of Dr. Chen and Dr. Sie after the accident, as well as the limited surveillance evidence in December 2001, I accept that Mr. Boyer suffered a cervico-lumbar strain as a result of the accident. I note as well that, despite their concerns with Mr. Boyer’s veracity, Drs. Roussev and Rindlisbacher (in September and October 2001, respectively) reported that he likely suffered a myoligamentous cervico-lumbar strain in the accident. I also find significant that, as late as the fall of 2005, Dr. Pruzanski found substantial tenderness in Mr. Boyer’s right shoulder/cervical area and lumbar spine, and Dr. Wong found myofascial injury to all levels of Mr. Boyer’s spine.

The assessors who concluded that Mr. Boyer had not been physically injured in the accident did so essentially on the basis of their view that Mr. Boyer’s complaints were not genuine. As noted above, I have found that Mr. Boyer credibly reported his pain and other symptoms. I, therefore, find that the discrepancies in his presentation or the absence of objective findings do not undermine the legitimacy of Mr. Boyer’s complaints. This is particularly the case given the psycho-emotional, as well as the physical, nature of his injuries. In this regard, I accept the opinion of those who diagnosed Mr. Boyer as suffering from fibromyalgia and/or chronic pain syndrome.

While Dr. Hoff may have communicated to Dr. Sie two months after the accident that Mr. Boyer suffered from fibromyalgia, and while he may not have been specifically qualified to do so, I do find that, unlike Drs. Harrington and Rindlisbacher (who also saw Mr. Boyer at the time), Dr. Hoff properly considered the psycho-emotional nature of Mr. Boyer’s symptoms following the accident, specifically, accident-related anxiety and depression and post-traumatic stress. I find that Dr. Hoff’s diagnosis was consistent with Mr. and Mrs. Boyer’s evidence concerning the specific circumstances of the accident and Mr. Boyer’s emotional response to the incident, both at the time of the accident and in the subsequent weeks and months. I also find that Dr. Hoff’s suspicions were confirmed by a number of other specialists who were qualified to make the relevant diagnoses, namely, Drs. Lee, Saul, Ali, Moran, Wong and Salmon (spanning a period of four years, from early 2002 to late 2005). Like Dr. Hoff, they emphasized the post-traumatic nature of Mr. Boyer’s condition (for example, post-traumatic fibromyalgia, chronic pain and stress disorder).

Thus, while Dr. Hoff might have been somewhat predisposed to finding fibromyalgia in motor vehicle accident victims, and while he might have assumed a somewhat partisan role in assessing and communicating Mr. Boyer’s case, I find that his understanding of Mr. Boyer’s problems was corroborated by various other assessors. And while Dr. Hoff made the disconcerting statements about training Mr. Boyer to "fake" his presentation at assessments, I see no evidence to suggest that this did, in fact, occur, particularly given that Dr. Lee had diagnosed post-traumatic fibromyalgia prior to Dr. Hoff’s comments, and given that Mr. Boyer’s presentation at the assessments in the three to four years following Dr. Hoff’s comments seemed to remain the same. Therefore, while Dr. Hoff’s comments cannot be condoned, I find that they had no practical effect on the outcome of this case.

Drs. Prendergast, Koepfler and O’Riordan all suggested that, were it not for Mr. Boyer’s lack of credibility, they would likely have supported a finding that he suffered a significant accident-related psychological and/or pain disorder. As discussed above, I do not accept their findings that Mr. Boyer’s complaints were not genuine. I, therefore, find that these specialists, in fact, supported the view of several of the other assessors that Mr. Boyer suffered from post-traumatic fibromyalgia and/or chronic pain syndrome.

I find that Mr. Boyer’s physical and emotional state was significantly worse than before the accident. As noted, while he had suffered bouts of stress and depression, with associated stomach problems, he suffered neck and back pain, and post-traumatic stress, as a result of the accident, which quickly evolved into chronic pain syndrome and/or fibromyalgia. These problems, in turn, developed into serious and chronic depression, as well as post-traumatic stress disorder. I agree with Dr. Hoff’s assessment that, while Mr. Boyer may not have been fully functional before the accident, he was much worse after, and as a result of, the accident. I also agree with Dr. Moran’s evidence that Mr. Boyer was vulnerable at the time of the accident and did, in fact, develop a serious chronic pain disorder as a result of the accident. I find that Mr. Boyer’s use of marijuana significantly increased following the accident and that, as noted by Dr. Moran, this was Mr. Boyer’s attempt to deal with the effects of his chronic pain syndrome. I note, as well, that this was one of a number of alternative remedies Mr. and Mrs. Boyer tried in order to alleviate Mr. Boyer’s pain and depression.

While Mr. Boyer was involved in two subsequent motor vehicle accidents (in early and late 2004), I find that they did not materially alter the nature or course of the symptoms he had developed following the July 2001 accident. I note that his chronic pain and depression were well-entrenched by 2004 and that his problems (and associated assessments) remained much the same following the two new accidents.

I find that Mr. Boyer’s post-accident attempts to return to work support his claim that he suffered significant physical and emotional problems as a result of the accident. I find that Mr. Boyer (with the encouragement of his wife) attempted to return to gainful employment, but could not sustain these efforts. He could not perform the two physical jobs he attempted, namely, loading skids at Behr Paints and delivering newspapers for the National Post. This was also apparent in his courier job, where his wife had to help him in physically delivering the packages. The only extended employment Mr. Boyer had after the accident was as a courier, but he only worked part-time, required substantial assistance from his wife (before, during and after her maternity leave) and could ultimately not sustain this position due to his pain, depression and anxiety. His attempt to drive an ice cream truck was short-lived for the same reasons, again even with the help of his wife. I find that Mr. Boyer made legitimate attempts to re-enter the workforce, but could not carry on due to the pervasive physical and emotional problems he suffered from the accident.

The Extent of Mr. Boyer’s Disability

I find that, as a result of the July 2001 motor vehicle accident, Mr. Boyer suffered a complete inability to engage in any employment for which he was reasonably suited by education, training or experience.

As discussed above, I find that Mr. Boyer credibly reported his symptoms and that he suffered significant physical and psycho-emotional deterioration as a result of the accident. I, therefore, do not accept the opinion of those assessors who concluded that Mr. Boyer could return either to his pre-accident employment at Lear Corporation or to a suitable alternative. Specifically, I find that Dr. Rindlisbacher had an overly limited understanding of Mr. Boyer’s problems and that Dr. O’Riordan misinterpreted Mr. Boyer’s presentation as that of a malingerer/mixed-deceiver. I note that Dr. Prendergast did not comment on the issue of Mr. Boyer’s employability and that, despite her reservations concerning Mr. Boyer’s veracity, Dr. Koepfler found that Mr. Boyer was substantially unable to perform his pre-accident job and should not engage in a modified return to work plan until he had participated in an intensive multi-disciplinary functional restoration and pain management programme.

For the reasons set out above, I prefer the opinions of those assessors who found that Mr. Boyer suffered significant physical and emotional impairments as a result of the accident and was, consequently, unable to return to gainful employment. For example, I find that Mr. Boyer’s various unsuccessful attempts to return to work confirm Dr. Wong’s and Dr. Salmon’s view that the combination of Mr. Boyer’s physical and psycho-emotional symptoms would prevent him from obtaining and maintaining reasonably suitable part-time or full-time employment.

I acknowledge that Mr. Boyer reported gross business income of roughly $14,000 and $25,000 in 2003 and 2004, respectively, but, as noted, this was with the substantial involvement of Mrs. Boyer in his work as a courier. These figures are also considerably lower than what he made at Lear Corporation before the accident, namely, $35,000 in 2000 and $22,000 in the first half of 2001.

Finally, Allstate did not attempt to provide evidence of reasonably suitable jobs Mr. Boyer could do, should he be found to be incapable of returning to his pre-accident employment. Allstate simply relied on the opinions of certain assessors that Mr. Boyer was capable of returning to his pre-accident position. In the absence of any evidence of jobs Mr. Boyer might be able to perform, and given the nature and extent of Mr. Boyer’s disability, as well as his unsuccessful attempts to return to gainful employment, I find that, as a result of the July 24, 2001 motor vehicle accident, Mr. Boyer suffered a complete inability to engage in any employment for which he was reasonably suited by virtue of his education, training or experience.

Issue 2: Deduction of Mr. Boyer’s Post-Accident Income

Pursuant to section 6(2) of the Schedule, Allstate is entitled to deduct from the amount of income replacement benefits payable to Mr. Boyer "80 per cent of the net income received by [Mr. Boyer] in respect of any employment subsequent to the accident." Mr. Boyer made two submissions regarding the manner in which his post-accident income should be calculated (and, therefore, the extent to which his post-accident income should be deducted from his income replacement benefits).

First, Mr. Boyer submitted that his 2004 business expenses (in respect of his work for CRL courier) could be used to determine his post-accident income for 2003. Secondly, Mr. Boyer submitted that his post-accident income (for the courier job and the ice cream truck job) should be reduced to the extent of his wife’s assistance (estimated to be either 25% or 50%).

Regarding his business expenses, Mr. Boyer maintained that, based on his 2004 income tax returns, his business expenses were 58% of his gross income (his gross commission income being $24,985 and his net commission income being $10,418). Mr. Boyer argued that based on these figures, and despite the fact that his 2003 income tax return showed both gross and net business income to be $14,007, his 2003 business expenses could be assumed to be 50% of his gross income (leaving a net income of $7,003.50).

I am not prepared to make the assumption urged by Mr. Boyer. Mrs. Boyer testified that she kept all of her husband’s business records and that she gave her father’s accountant all of the necessary information for the preparation of Mr. Boyer’s 2003 income tax return. She testified that she did not know why there were no business expense deductions noted in the 2003 income tax return. In my view, given the importance of filing complete and accurate income tax returns, Mr. Boyer’s 2003 return should be presumed to be accurate in the absence of reliable evidence to the contrary. Mr. Boyer provided a series of gas receipts, but Mrs. Boyer testified that part of the gas receipts were for personal use. Mrs. Boyer also said that there were expenses for car payments and repairs, as well as for parking tickets, but that she could not find receipts for any of these at home. Mrs. Boyer testified that her father’s accountant definitely made a mistake by not recording any business expenses in 2003, but neither she nor her husband filed an amendment to Mr. Boyer’s 2003 income tax return. Therefore, while Mr. Boyer may have had business expenses in 2003, I do not find sufficient evidence to disregard what he reported on his income tax return or to use the 2004 business expense calculations to determine his 2003 business expenses and net income.

Regarding Mrs. Boyer’s contribution to Mr. Boyer’s courier and ice cream truck work, while, for the purpose of determining the nature and extent of his disability, I accept that Mrs. Boyer assisted him in his attempts to return to gainful employment, I do not find sufficient evidence to attribute a specific percentage to Mrs. Boyer for the purpose of determining the quantum of Mr. Boyer’s post-accident income. There is no evidence of the actual amount of work Mrs. Boyer did for her husband. Mrs. Boyer did not report any business income on her income tax returns. Neither Mr. Boyer nor his wife suggested that the business expenses reported in his 2004 income tax return included payments made or attributable to Mrs. Boyer. In his written submissions on the issue, Mr. Boyer did not provide evidence to substantiate his suggested assumptions of 25% and 50% regarding the amount of income to be attributed to Mrs. Boyer. Therefore, I do not find that any of Mr. Boyer’s post-accident income should be attributed to his wife for the purpose of determining the quantum of his income replacement benefits.

Issue 3: Mr. Boyer’s entitlement to the balance of Dr. Hoff’s account

Dr. Hoff submitted six treatment plans in total, dated September 14 and November 23, 2001, May 3 and September 13, 2002, and January 7 and March 7, 2003. Allstate approved the first treatment plan, but denied the others, essentially on the basis of Dr. Prendergast’s February 2002 DAC. A balance of $13,080 remains for his accounts. Pursuant to section 14 of the Schedule, Mr. Boyer is entitled to these benefits if they arose as a result of the accident and were reasonable and necessary. I find that Dr. Hoff’s treatment plans satisfy these requirements.

As noted above, I find that Mr. Boyer suffered significant physical and emotional problems as a result of the accident. In my view, Dr. Hoff was the first to identify the psycho-emotional nature of Mr. Boyer’s disability. I find that Dr. Koepfler’s February 2002 report significantly altered the weight to be attributed to Dr. Prendergast’s assessment of the reasonableness of Dr. Hoff’s proposed treatment, particularly given Dr. Koepfler’s diagnosis and recommendation of a multidisciplinary functional restoration and pain management programme, as well as a psychiatric assessment. This became clearer with the late 2002 reports of Drs. Saul, Ali and Moran (Dr. Ali’s report specifically noting the behavioural elements of Mr. Boyer’s disability and the need to continue with Dr. Hoff’s treatment). In my view, the evidence at the time, as well as the evidence subsequently gathered (including that heard at the hearing concerning Mr. Boyer’s credibility and the nature and extent of his disability) supported the conclusion that Dr. Hoff’s treatment of Mr. Boyer was reasonably required as a result of the accident.

I note as well that, on April 8, 2003, and despite the findings of the Disability DAC, Mr. R. DiDomenico, the new adjuster on the file, advised Mr. Boyer that he would pay for Dr. Hoff’s last treatment plan (dated March 7, 2003), as well as six additional months of treatment (based on Dr. Hoff’s opinion that Mr. Boyer would be "sufficiently recovered with further treatment…to return to work by January, 2004").

In all of the circumstances, therefore, I find that Mr. Boyer is entitled to the expenses claimed in respect of Dr. Hoff’s outstanding treatment accounts.

Issue 4: Special Award

Pursuant to section 282(10) of the Insurance Act, if Allstate is found to have "unreasonably withheld or delayed payments," it is liable to pay a "lump sum of up to 50 per cent of the amount to which [Mr. Boyer] was entitled at the time of the award together with interest on all amounts then owing to [him] (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule."

Mr. Boyer submitted that he was entitled to a special award on the basis that Allstate unreasonably denied and/or delayed his claims for Dr. Hoff’s treatment plans and for pre-104 week income replacement benefits.

As noted, Dr. Hoff submitted six treatment plans, Allstate approving the first, but denying the others. Allstate only required a Medical-Rehabilitation DAC in relation to the second treatment plan, and denied it, as well as the remaining plans, on the basis of the one DAC.

The difficulty is that, following the DAC, Allstate received important information that ought to have led it to reconsider its denial of further treatment. For example, in February 2002, Dr. Koepfler reported that Mr. Boyer should not engage in a modified return to work plan until "given the opportunity to participate in an intensive multidisciplinary functional restoration and pain management program." Dr. Koepfler also stated that, if Mr. Boyer continued to present with exaggerated symptoms, and if the functional restoration programme was unsuccessful, then he should undergo a psychiatric assessment. Allstate advised Mr. Boyer to arrange for a multidisciplinary programme, but then, as discussed below, improperly concluded that Mr. Boyer was not taking the necessary steps to participate in the programme. Allstate did not arrange for a psychiatric assessment.

In September 2002, Dr. Saul diagnosed Mr. Boyer as suffering from post-traumatic fibromyalgia and post-traumatic stress disorder, and stated that he was totally disabled from work. In November 2002, Dr. Ali reported that, due to Mr. Boyer’s level of functioning, he was not a suitable candidate for the required psychological therapy and pain management, and that it was, therefore, "strongly advised" that Mr. Boyer "continue his treatment sessions with Dr. Hoff, with a strong focus on a behavioural approach with regard to encouraging the patient to be more actively involved." Despite these additional reports, Allstate did not reconsider Mr. Boyer’s entitlement to further treatment.

Finally, in February 2003, Dr. Moran diagnosed Mr. Boyer as suffering from chronic pain syndrome and post-traumatic stress disorder, and admitted Mr. Boyer to the in-patient psychiatry unit at Credit Valley Hospital. By letter dated April 8, 2003, the new adjuster on the file, Mr. DiDomenico, advised Mr. Boyer that he would pay for Dr. Hoff’s last treatment plan (dated March 7, 2003), as well as six additional months of treatment (based on Dr. Hoff’s opinion that Mr. Boyer would be "sufficiently recovered with further treatment…to return to work by January, 2004"). By letter dated May 12, 2003, Mr. DiDomenico advised Dr. Hoff of this, and also offered to pay approximately two-thirds of Dr. Hoff’s outstanding account, indicating that he could not pay the full account "considering the conflicting opinions." By letter dated July 14, 2003, Dr. Hoff responded as follows:

…I do not want to consider a settlement until further medical information is obtained regarding the impairments of Mr. Boyer and in particular his credibility. It would perhaps be easier for me to accept your offer and be done with the money portion of this case with Allstate. However, I feel that I would be doing an injustice to Mr. Boyer and that I would lack integrity to settle my outstanding balance with Allstate at this time when the more important issue should be the matter regarding Mr. Boyer’s integrity."

I find that Allstate unreasonably denied and/or delayed the payment of Dr. Hoff’s accounts. In my view, Allstate should, at the very least, have arranged for the psychiatric assessment recommended by Dr. Koepfler in early 2002. Allstate should then have reconsidered the need for further treatment by Dr. Hoff following Dr. Saul’s and Dr. Ali’s reports in the fall of 2002.

As part of this reconsideration, Allstate ought to have arranged a further DAC, pursuant to section 38(12) of the Schedule (under which an insurer is to require an insured to be assessed by a DAC where the insurer has denied a treatment plan). Even if this was not strictly required, Allstate ought to have sought a further medical opinion on the nature and extent of Mr. Boyer’s condition and on whether Dr. Hoff’s treatments were, in fact, reasonably necessary. These steps also should have been taken following Dr. Moran’s February 2003 report. Instead, two months later, Allstate advised Mr. Boyer that it would pay for Dr. Hoff’s latest (and last) treatment plan, and offered to pay a portion of Dr. Hoff’s outstanding accounts. While Mr. DiDomenico attempted to rectify the situation, no explanation was provided as to the change in Allstate’s position. I, therefore, conclude that Allstate unreasonably and without explanation denied and/or delayed the payment of Dr. Hoff’s treatment plans.

Regarding Mr. Boyer’s income replacement benefits, on July 29, 2002, the original adjuster on the file, Ms. Kinmond, advised Mr. Boyer that his income replacement benefits would be reduced to 50% since he had not pursued Dr. Koepfler’s recommendation of an intensive multidisciplinary functional restoration and pain management programme (as confirmed in Ms. Kinmond’s letter to Mr. Boyer of March 4, 2002). However, Dr. Sie sent the required referral to Toronto Western Hospital on March 13, 2002 and the clinic did not arrange the first appointment until October 8, 2002, because they required more information from Dr. Sie (as confirmed both by Mr. Boyer’s original representative in a letter dated August 14, 2002 and by Dr. Sie in a letter dated September 20, 2002). On October 7, 2002, Ms. Kinmond confirmed that the full IRBs would not be paid for the period of July 21 to September 15, 2002 because Mr. Boyer was "not in compliance with section 55 of the SABS." However, Ms. Kinmond testified that her notes did not indicate that she had spoken to Mr. Boyer’s representative regarding the status of the recommended treatment before reducing Mr. Boyer’s IRBs to 50%. Ms. Kinmond also acknowledged that full IRBs were not reinstated upon receipt of the August 14, 2002 letter from Mr. Boyer’s representative.

By letter dated November 27, 2002, Ms. Kinmond notified Mr. Boyer that his IRBs would be discontinued entirely on the basis of Dr. Ali’s advice that Mr. Boyer was "unresponsive to him [and was] not taking an active role in participating in the program recommended" and because "other medical information on file [did] not support a substantial inability to carry out [his] pre accident employment tasks." However, at the hearing, Ms. Kinmond acknowledged that Dr. Ali had told her that Mr. Boyer was not ready to participate in the recommended programme and that Dr. Koepfler had indicated that Mr. Boyer was substantially unable to perform his pre-accident employment. Ms. Kinmond also indicated that neither Dr. Ali’s nor Dr. Moran’s reports had been forwarded to the Disability DAC.

In his April 2003 letter, Mr. DiDomenico, wrote the following concerning Mr. Boyer’s income replacement benefits:

I believe you have already been provided with a copy of the report from Health Recovery [the disability DAC]. All of the medical people you saw have all come to the same conclusion. Therefore, I have to discontinue the Income Replacement Benefit we have been paying.

In order to make the situation less stressful, I am paying benefits to July 30, 2003. That means that benefits would have been paid for 104 weeks. At the 104 week mark, the test for qualifying for further benefits changes. Since the medical people at Health Recovery felt that you no longer qualify for benefits now, I highly doubt that you would meet the less [sic] stringent test at the 104 week mark.

In reviewing the file I note that Ms. Kinmond reduced benefits for a period of time. Had she continued to pay benefits at the regular rate, you would have received an additional $2,416.42. Since I don’t want Income Replacement Benefits to be an issue prior to the two year mark, I am including this amount in the cheque which you will receive under separate cover.

Please don’t misconstrue this as an offer of settlement. I am paying the Income Replacement Benefits that I owe; in fact, I’m probably paying more than I should based on the recent reports.

On behalf of Allstate, Ms. Kinmond testified that Mr. DiDomenico’s statement to the effect that all of the medical assessors concurred about Mr. Boyer’s condition, meant that Allstate had "interpreted" that the doctors had all concluded that Mr. Boyer did not meet the relevant test of disability. Ms. Kinmond did not know if Allstate’s payment of $2,416.42 for the outstanding reduced IRBs included interest on the reinstatement of full IRBs.

Again, while Mr. DiDomenico attempted to rectify the situation (confirming that he was paying at least as much as Allstate owed), I find that Allstate unreasonably delayed and/or denied payment of Mr. Boyer’s IRBs in light of Mr. Boyer’s efforts to arrange for the multidisciplinary programme, which were or ought to have been known to Allstate prior to its decision to reduce his IRBs. Further, Allstate’s decision to terminate IRBs altogether was based on a misstatement of Dr. Ali’s position, as well as an overly limited interpretation of Dr. Koepfler’s opinion, particularly in light of her recommendations for further treatment and assessments (which Mr. Boyer was attempting to pursue). Then, when Allstate decided to pay Mr. Boyer full IRBs to the two-year mark, it appeared to suggest that Mr. Boyer was both entitled and not entitled to this, essentially on the basis of the recent Disability DAC. The DAC had also not taken into account Dr. Ali’s or Dr. Moran’s reports, which were significant in light of the opinions of Drs. Hoff, Lee and Saul, as well as that of Dr. Koepfler. I, therefore, find that Allstate unreasonably delayed and/or denied the payments of Mr. Boyer’s IRBs.

Despite these conclusions, given that Allstate paid Mr. Boyer the IRBs that had been reduced by 50% (which only totaled $2,417.42), given Allstate’s payment of IRBs to the two-year mark and given Allstate’s legitimate questions about the nature and extent of Mr. Boyer’s disability (based on the various medical opinions), I find that only a modest special award should be imposed. Therefore, given the approach to determining a special award set out in the appeal decision of Liberty Mutual Insurance Company and Persofsky, et al. (FSCO Appeal P00-00041, January 31, 2003), based on the brief period in which Mr. Boyer’s IRBs had been reduced and given Dr. Hoff’s outstanding account of $13,080, as well as in all of the circumstances of the case, I find that a special award of $5,000 is warranted.

Issue 5: Interest

I find that Mr. Boyer is entitled to interest on the IRBs that were reduced (to the extent that interest has not already been paid on this amount), on Dr. Hoff’s outstanding account and on the IRBs from the 104-week mark.

EXPENSES:

The parties did not make submissions on expenses. If required, the parties may make submissions on this issue in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

May 30, 2007

Eban Bayefsky Arbitrator

Date

Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 108

FSCO A03–001739

BETWEEN:

NORBERT J. BOYER Applicant

and

ALLSTATE 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. Allstate shall pay Mr. Boyer weekly income replacement benefits from July 24, 2003.
2. The deduction of Mr. Boyer’s post-accident income shall not be calculated on the basis of his 2004 business expenses or the assistance he received from his wife in 2003 and 2004.
3. Allstate shall pay Mr. Boyer a medical benefit for services provided by Dr. Hoff, in the amount of $13,080.
4. Allstate shall pay Mr. Boyer a special award in the amount of $5,000.
5. Allstate shall pay Mr. Boyer interest on the income replacement benefits that were reduced to 50% (to the extent that interest has not already been paid on this amount), on Dr. Hoff’s outstanding account of $13,080 and on the income replacement benefits owing as of July 24, 2003.

May 30, 2007

Eban Bayefsky Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.