Neutral Citation: 2008 ONFSCDRS 10

FSCO A04-001121

BETWEEN:

YOUSAF SAFI

Applicant

and

SOVEREIGN GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Edward Lee

Heard: July 24 and 26, 2006, December 4, 5, 6, 7, 2006, March 6, 7, 8, 2007 and August 26, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on September 24, 2007.

Appearances: Jeffrey Raphael for Mr. Safi Barbara MacFarlane for Sovereign General Insurance Company

The Applicant, Yousaf Safi, was injured in a motor vehicle accident on November 6, 2002. He applied for and received statutory accident benefits from Belair Insurance Company Inc. ("Belair"), payable under the Schedule.¹ Belair terminated weekly income replacement benefits ("IRBs") and other benefits in the summer of 2003. Later, as a result of the Priorities Regulation,² Sovereign General Insurance Company ("Sovereign") became the Insurer. The dispute was not resolved through mediation, and Mr. Safi 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. Safi entitled to receive a weekly income replacement benefit of $400.00 per week from July 9, 2003 continuing and ongoing, pursuant to section 4 of the Schedule?
Is Mr. Safi entitled to receive a medical benefit of $1,920.00 for nerve injections, $1,290.00 for acupuncture, $1,540.00 for massage therapy, and $4,500.00 for an individualized progressive physical conditioning program, pursuant to section 14 of the Schedule?
Is Mr. Safi entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from June 20, 2003 to November 5, 2004, pursuant to section 22 of the Schedule?
Is Sovereign liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Safi?
Is Sovereign liable to pay Mr. Safi's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Safi liable to pay Sovereign's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Safi entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mr. Safi is entitled to receive a weekly income replacement benefit of $400.00 per week from July 9, 2003 continuing and ongoing, pursuant to section 4 of the Schedule.
Mr. Safi is entitled to receive a medical benefit of $1,920.00 for nerve injections, $1,290.00 for acupuncture, $1,540.00 for massage therapy, and $4,500.00 for an individualized progressive physical conditioning program, pursuant to section 14 of the Schedule.
Mr. Safi is entitled to payments for housekeeping and home maintenance services in the amount of $50.00 per week from June 20, 2003 to November 5, 2004, pursuant to section 22 of the Schedule.
Sovereign is liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Safi. The amount of the special award is to be determined following submissions by the parties.
If the parties are unable to agree on expenses, a hearing may be requested in accordance with the Dispute Resolution Practice Code.
Mr. Safi is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

PRELIMINARY MATTERS:

Two preliminary matters were raised. In the first, Sovereign argued that Mr. Safi should not be permitted to make a claim for post 104-week IRBs. Mr. Safi's IRBs had been terminated on June 18, 2003 (before the two-year mark), after Mr. Safi had been the subject of insurer's medical examinations in June 2003. While Mr. Safi received a notice pursuant to section 37 of the SABs informing him of the termination, he never proceeded to a post 104-week DAC assessment. Sovereign argued that section 50(1)(c) of the SABs precluded Mr. Safi from making his post 104-week claim, as he had never undergone a required post 104-week DAC assessment.

Sovereign also argued that it would be unfair to allow Mr. Safi to make this claim as the only post 104-week medical evidence they possessed were two later insurer's medical examinations prepared in April 2005. These 2005 insurer's examinations were the subject of Mr. Safi's own preliminary objection, and Sovereign argued that if I excluded them, Sovereign would be left in the unfair position of having no rebuttal evidence in regard to his post 104-week condition.

Mr. Safi's response was that Sovereign had known he was making an ongoing claim for IRBs since at least the mediation in December 2003, and the claim for post 104-week IRBs had been patently evident since the pre-hearing discussion in June 2005. The claim for IRBs was a single issue and had not been broken up by the pre and post 104-week mark. Further, he added that Mr. Safi had not been under any "requirement" to undergo a DAC since section 37(3) placed no such obligation on him.

Neither side presented me with caselaw to support their arguments and I ruled orally, convinced that Mr. Safi's position was the correct one. Sovereign did not argue that Mr. Safi could not claim pre 104-week IRBs, and my reading of section 37(3)(2) of the SABs is that it allows the applicant a right to a DAC, but does not make it obligatory for him to submit to one. Nor was I convinced that it was an issue of fairness or that the passage of the 104-week mark automatically imposed some new requirement on Mr. Safi. Therefore, I did not find that section 50(1)(c) precluded him from making his post 104-week claim.

In the second preliminary matter, Mr. Safi sought to exclude the two reports prepared pursuant to the April 2005 insurer's medical examinations on the grounds that they had not been "reasonable and necessary." Given that they took place long after benefits were terminated, Mr. Safi argued that they could only have been done for the purpose of buttressing the case for the upcoming arbitration. I agreed that this might have been the reason for which the Insurer sought the examinations, but with Mr. Safi having undergone them, I was not convinced that they should now be excluded.

MAIN QUESTION IN DISPUTE:

The main question in this case is whether Yousaf Safi suffered chronic pain or fibromyalgia and depression or other psychological problems as a result of the motor vehicle accident, and whether these impairments entitled him to the benefits claimed.

Sovereign's attack on Mr. Safi's case was three-pronged. The first argument was that Mr. Safi was not credible in the presentation of his pain symptoms and the psychological problems he experienced after the accident. Therefore, he was not as disabled as he claimed, and he was not entitled to the benefits sought. The second and alternative position was that even if Mr. Safi was credible in his presentation, his chronic pain, fibromyalgia, depression, and other psychological conditions were not causally linked to the motor vehicle accident. Finally, Sovereign argued that even if the accident had been the cause of these conditions, he was not disabled to the extent that he was eligible for the benefits sought.

EVIDENCE:

Yousaf Safi:

Yousaf Safi testified that he was injured in a motor vehicle accident on November 6, 2002 as he was driving home from work. After the accident he visited his family doctor and complained of neck, shoulder, lower back, and lower body pain. He received treatment for his physical injuries in the form of physiotherapy, massage, and chiropractics from Simply Align Rehab Clinic for approximately three to four months. He also began receiving psychotherapy treatment shortly afterward and continues to receive psychotherapy at the present time.

He received IRBs of $400.00 per week which were terminated by the Insurer in June 2003, and Housekeeping and Home Maintenance benefits in the amount of $100.00 per week which were terminated on June 20, 2003. He has never returned to his former employment.

Prior to his accident he was employed on a full-time basis as a shipper, handler, truck driver, and deliveryman by Crescent Industries. In that capacity, he earned $12.50 per hour and worked from 40 to 55 hours per week. His work involved lifting, moving and carrying boxes of car parts and cans of paint from the warehouse area to a delivery van. He also drove the van to the delivery point. He lifted weights as heavy as thirty pounds in the form of five-gallon paint cans, moving them 20 to 30 meters. He started work at 7:00 to 7:30 a.m. and finished work at 6:00 p.m. Five to six hours of each day were spent loading and the rest of the time was used in delivery and some unloading.

At the present time, pain is at the crux of his complaints. He has intense headaches two or three times a week. He has painful neck ache that occurs as often as two to four times a week. He still has pain (up and down) in his right shoulder, and in his right hand (two to four times a week). He also has low back pain (two to three times a week), and pain and numbness in his left leg, and numbness in his upper left body. He continues to take medications for his pain.

He has also suffered from psychological and emotional problems since his accident. He states that he has depression, is irritable toward his wife and children, is unable to concentrate, and has memory problems. He no longer has the patience to read, feels sad, has suffered a decrease in libido, has insomnia, and some fear of driving.

He can now walk for 20 to 30 minutes maximum when he feels well, and he can stand for no more than 20 minutes. He can lift eight to ten pounds at most, and drive for a half hour to 50 minutes.

Before his motor vehicle accident he had no shoulder pain, no leg numbness, and only a short spell of low back pain that occurred in 1995 and was resolved. Instead of returning to his former job at Crescent Industries, he attempted work as a delivery and a cash register person on an unpaid basis at a Mr. Sub franchise in late 2004. Typically, he worked five to six hours per day, two to three days a week. He stopped working after several months because he was unable to concentrate, felt fatigue and pain, and could not remember where to make the deliveries.

Previous to the accident, he and his wife shared housekeeping duties, he doing 60% and she handling 40%. He cleaned windows, did laundry, and made necessary repairs to the house, including work on the walls and the sink. He had moved the fridge, the stove, and the washing machine. At the present time, he does no housekeeping tasks. Up to November 2004, his share of the housekeeping was done by his brother who came to the home two to three times per week and remained three to four hours on each occasion. He cleaned windows, vacuumed, did laundry, home repair, and the fixing of the wall or sink.

Previous to his accident, he was much more active. He saw his friends, read, studied, went out, and played volleyball. He no longer engages in these activities.

Mrs. Nasim Nawabi, the Applicant's wife:

Mrs. Nawabi testified that prior to the motor vehicle accident, she did 60% of the housekeeping, and Mr. Safi did 40%. Pre-accident, he did laundry (including placing the clothes in the machine), some of the shopping, and was responsible for the family groceries. Since the accident, he does nothing, and it is his brother who now helps her with laundry, shopping, taking care of the children, and fixes and does things in the home.

She states that her husband has changed since the motor vehicle accident. He gets upset, spends a lot of time in his room, and no longer talks with the children. He talks little, does not sit, go out with friends, and he sleeps badly.

Dr. Kachooie (Insured's medical witness):

Dr. Kachooie, a physiatrist, testified that he saw as many as ten motor vehicle accident patients per week. He began treating Mr. Safi in April 2003 and has continued to see him periodically up to November 2006.

In April 2003, Dr. Kachooie chronicled the Applicant's complaints: persistent neck pain, stiffness, pain in the right shoulder, low back and headaches. Dr. Kachooie diagnosed whiplash, right cervical radiculopathy, rotator cuff tendonitis, discogenic back pain, and sciatica. Initially, Dr. Kachooie encouraged the Applicant to return to work and a return to the activities of daily living.

Nevertheless, he noted that Mr. Safi continued to experience similar symptoms over the next three years. On December 2, 2004, he diagnosed cervical radiculopathy, discogenic back pain, sciatica, functional limitation, and concluded that the Applicant was limited and disabled at this point. In September 2006, he saw no significant improvement. In November 2006, he noted persistent pain in the neck, low back and lower extremities, numbness and weakness in the left arm, persistent headaches, and a marked depression.

At the present time, over four years post accident, he concludes that Mr. Safi has Chronic Pain Syndrome, and has plateaued in his recovery. Mr. Safi is ever more reliant on medication. Dr. Kachooie's experience is that 90% to 95% of motor vehicle accident victims with soft tissue injuries heal within 7-12 weeks, but 5% do not. In his opinion, Mr. Safi falls in this 5%. His prognosis is guarded to poor. Initially after his accident, he had a substantial inability to perform the essential tasks of his job, and since the 104-week mark in November 2004, he has had a substantial inability to perform any job.

In his November 2006 report, he made this conclusion:

The motor vehicle accident was the primary causative factor to his current level of persistent pain and functional limitation, disability. He is not able to perform any gainful occupational, activities, he requires assistance for heavy and physical demanding aspect of housekeeping tasks (sic).³

Dr. Conn, orthopediac surgeon, Insurer's Medical Examination:

Dr. Conn performed insurer's Medical examinations on February 12, 2003 and May 5, 2003, with help of interpreter. In his February assessment, Dr. Conn concluded that there "[appeared] to be a causal relationship between the accident related injuries and his initial complaints."⁴ He did see evidence of atrophy in the left calf. He concluded that Mr. Safi was temporarily unable to carry on with his job and his housekeeping chores.

Nevertheless, Dr. Conn also found that that there were numerous "inconsistencies" in Mr. Safi's presentation, and concluded that there was a "significant heightening of the pain response." During the assessment, he found that Mr. Safi's heart rate was not statistically correlated with his effort. The tests he conducted were inconclusive and not accurate. He stated that the grip strength test demonstrated no bell curve, and initially he felt that Mr. Safi could return to work as early as March 2003.

In May 2003, when Mr. Safi was reassessed, Dr. Conn again observed multiple and excessive pain responses, and could find no physiological reasons for these responses. There was little objective evidence of significant musculoskeletal-impairment, and physiologically, he expected a full recovery.

Overall, Dr. Conn's opinion was that Mr. Safi's pain responses were inconsistent, heightened or disproportional and not correlated or related to physiological reasons. These findings led him to conclude that Mr. Safi was not disabled as he said he was.

Dr. Debow, psychiatrist, Insurer's Medical Examination:

Dr. Debow, a psychiatrist, testified that he performed a psychiatric assessment on February 14, 2003. In his report, he concluded: "There is no psychiatric impairment present as a direct result of the accident. There is no psychiatric condition or impairment requiring treatment as a direct result of the accident. And from a psychiatric perspective, Mr. Safi is able to perform the essential tasks of his activities of daily living/occupation relative to the motor vehicle accident."⁵

Dr. Debow repeated these conclusions in testimony. His report also outlined his position that Mr. Safi did not fulfill the diagnostic criteria for depressive episode, dysthymic disorder, adjustment disorder with mixed anxiety and depressed mood, panic attack, post traumatic stress disorder, or generalized anxiety disorder. He also stated that he had not observed physical evidence (such as folding of the skin around the eyes) of depressive affect, psychomotor agitation or retardation, or other physical signs that would substantiate these diagnoses.

He reiterated that although Mr. Safi often stated his subjective feelings, this had not led him to diagnose any the above noted disorders, and he criticized some of the reports led by Mr. Safi for this lacunae.

The only diagnostic criterion Mr. Safi met was that of Pain Disorder in Association with Psychological Factors, although Dr. Debow was quick to point out that the psychological factors pre-existed the accident and had not previously been a conscious focus of attention for Mr. Safi. Dr. Debow concluded that Mr. Safi had focused on the accident to avoid dealing with the pre-existing factors. Thus, Dr. Debow's conclusion was that this Pain Disorder "...is not in direct relationship with the Motor Vehicle Accident."

ANALYSIS:

Argument on Credibility:

On numerous occasions Sovereign highlighted testimony and notes in the medical reports wherein Mr. Safi was described as having multiple or exaggerated pain responses⁶, exhibiting voluntary inhibition of effort and inconsistencies⁷, disproportionate symptoms⁸, or displayed numerous non-organic findings and inconsistencies.⁹ Dr. Bushuk (DAC assessor) went so far as to say that Mr. Safi was "not nearly as disabled as he would have you believe."¹⁰

Sovereign's argument was that these pain responses were faked, and thus the Applicant was not substantially disabled from performing the essential tasks of his pre-accident employment, or any employment that would fall under the post 104-week test. He also did not meet the tests for entitlement to the housekeeping or medical benefits claimed.

Mr. Safi's witnesses accepted that his pain responses were credible, supported by objective medical evidence in the form of an ultrasound, CT scan and MRIs, and led them to the conclusion that he suffered from fibromyalgia or chronic pain syndrome or both and depression.¹¹ These problems precluded Mr. Safi from returning to either his pre-accident employment or engaging in any post 104-week employment and led to entitlement to the other benefits as well.

The Lay Witnesses:

Before turning to the medical evidence, my overall assessment of the testimony of Mr. Safi and of his wife, Mrs. Nawabi, was that they were both credible as witnesses. I did not discern any obvious contradictions or inconsistencies in their testimony. I found Mrs. Nawabi's testimony particularly believable and somewhat poignant, given her frank and obvious disappointment in regard to Mr. Safi's present condition, recovery, abilities, and functional capacity at home and in the workplace.

On several occasions the Insurer challenged Mr. Safi's use of a cane. Dr. Kachooie testified that the use of a cane could sometimes be helpful although he had not recommended it for Mr. Safi himself. It was unclear where Mr. Safi obtained his cane as none of the medical practitioners testified that they had prescribed it for him. In his report, Dr. Oshidari mentioned that Mr. Safi's limping had a "tendency to change."¹² Overall, I did not find that Mr. Safi's decision to use a cane detracted from his credibility in any substantial manner. I certainly agree that at some point post accident, Mr. Safi became pain focused and this very well might have led him to use a cane, but this, in itself, did not lead me to conclude that he was falsifying all his complaints.

More importantly, I did not find that Mr. Safi's decision to forego a return to work at Crescent Industries was lethal to his case. On numerous occasions the Insurer sought to hammer home that modified work was available at Crescent had he returned, but no representative of Crescent appeared before me to testify in regard to this "light duties job."

In fact, none of the witnesses, including Mr. Safi's doctors, knew what these modified duties were or could have been. The only reference to modified work was found in the AssessMed Job Demands Analysis¹³, wherein the assessor noted that a supervisor at Crescent reported that they would accommodate the Applicant with "a graduated return to work, or a light duties job, should it be requested by the applicant or his doctor." No details are given as to this work, and I agreed with Mr. Raphael's submission that it would have been difficult to imagine what else Mr. Safi might have done at Crescent, given his very limited skills and abilities. I drew no adverse inference from the fact that Mr. Safi did not attempt a return to work at Crescent.

Instead, I found the evidence of Mr. Haroon Muzamen in regard to Mr. Safi's actual attempt to return to work much more helpful. A friend, Mr. Muzamen employed Mr. Safi on a volunteer trial basis for several months at his Mr. Sub franchise. He testified that Mr. Safi would often get lost while searching for the addresses where he was to make his deliveries, leading to customer complaints and cancellations of orders. Mr. Safi was unable to deal with numbers, money, and to make change at the cash register. Mr. Muzamen could not trust Mr. Safi to make sandwiches which required him to operate a cutting machine. I found this testimony frank and convincing. Clearly, Mr. Muzamen thought that Mr. Safi was unable to handle the challenge of performing the simple duties of a delivery person and cash register attendant at a Mr. Sub franchise.

The Medical Witnesses and Reports:

Courts and FSCO arbitrators have recognized chronic pain syndrome, fibromyalgia, and other related medical conditions as significant medical impairments.¹⁴ It is also agreed that pain is a subjective experience, which may be incapable of objective measurement. In some cases there may be no organic cause for a person's pain.¹⁵

In my examination of Mr. Safi's pain complaints and pain-related psychological problems, I focused much of my attention on the ultrasound, CT scan and the MRIs, given that they could perhaps provide an objective basis for his conditions. Both Dr. Kachooie and Dr. Conn agreed that these findings were significant and pre-existed the accident. They disagreed as to the extent of the pathology described, its cause, and its ultimate effect on Mr. Safi.

It is worth reproducing the salient portions of those reports. The ultrasound report read as follows:

Ultrasound of Both Shoulders: Ultrasound of both shoulders show the left shoulder to be normal. There is some thickening of the rotator cuff on the right side which measures 6.0mm indicating evidence of a tendonitis. No other abnormality is seen."¹⁶

The CT Lumbosacral spine of May 16, 2003 stated the following:

SUMMARY: There is a mild spinal stenosis at L3-L4 and L4-L5. At L5-S1 there is a posterior osteocartilaginous bar projecting towards the left resulting in foraminal stenosis bilaterally and possible left S1 root compression."¹⁷

An MRI of March 11, 2003 stated the following:

FINDINGS: Sagittal imaging shows evidence of a small central disc herniation at C5-6 which is fairly broad based and extends bilaterally. This however is not well visualized or captured on the axial imaging. The findings are fairly subtle. There is no involvement of the intervertebral foramina on either side. A small disc prolapse may be slightly eccentric in that there is more prominent but subtle bulge of the disc to the right of midline than to the left. This might explain the patient's recent symptoms.¹⁸

Dr. Conn clearly believed that Mr. Safi exaggerated his pain responses, and determined that there was little linkage with this organic presentation.

Dr. Kachooie linked these pre-existing problems with Mr. Safi's current medical problems. He noted that Mr. Safi was asymptomatic before the accident. He stated that a typical patient with the conditions found in the ultrasound, CT scan and MRIs would likely not have symptoms until he was in his late 50's or early 60's. Dr. Kachooie attributed Mr. Safi's problems to the motor vehicle accident, which affected the nerve through the spine, tightened and led to foramen stenosis on both sides, and led to nerve compression and to leg numbness.

His evidence was that once it became symptomatic, a stenosis became "relentless", in that the condition did not resolve completely, even after surgery. Instead, it contributed to a perpetual chronic pain state. He testified that patients with anxiety and depression could have an enhanced pain level, and that their pain perception could be influenced by this psychological state.

In cross-examination, he admitted alternative possibilities. He admitted that a stenosis could cause problems after a fall, as a result of lifting, or by doing a physically demanding job over a long period of time. The problems could occur as early as age 20, although normally, one would expect to see a specific incident or action setting off the problem.

Dr. Conn agreed that Mr. Safi had some symptoms and possibly nerve root irritation, but emphasized that his pain behaviour was disproportional, enhanced, and heightened. In his opinion, soft tissue injuries healed after three months, although in some cases, "the symptoms never went away." [emphasis mine] As an orthopaedic surgeon, Dr. Conn's focus was on the musculoskeletal component of any medical presentation, and by his own admission, he did not treat chronic pain or test for fibromyalgia. He did not accept that pain itself could be a disability or an impairment.

When questioned about the ultrasound, he stated that it showed a narrowing of the spinal canal, although he believed that it was degenerative, and had occurred over a length of time. He did admit that a motor vehicle accident could cause an aggravation of such pre-existing symptoms. Such a condition could have been asymptomatic before the accident, and afterwards, would prolong the resolution of the injuries.

He agreed that the ultrasound showed changes in the tendon, and possibly a tear. These might have been degenerative changes. Nevertheless, it was a "significant finding that something is going on with the rotator cuff." He conceded that such a condition might be or might not have been documented in the medical record preceding the motor vehicle accident.

I found both Dr. Conn and Dr. Kachooie were helpful experts, in that neither was overly dogmatic or so fixated with his stated opinion as to be unable to consider an alternative theory, explanation, or viewpoint.

The ultrasound, CT scan and the MRIs were also the subject of commentary in many of the other medical reports adduced at the hearing.

Dr. Ogilvie-Harris, an Insured's witness and orthopedic surgeon, concluded that Mr. Safi sustained soft tissue injuries to the cervical and lumbar spine, and minor tearing or disruption of ligaments. Mr. Safi had pre-existing degenerative changes which, when further damaged, sustained a greater degree of damage.¹⁹ Dr. Ogilvie-Harris observed an adverse psychological or emotional response to injury which led to a poor prognosis for recovery. He diagnosed Chronic Pain Syndrome which also possibly explained Mr. Safi's heightened pain response.

Dr. Bushuk, the DAC orthopedic surgeon, also noted the pathologies in the spine and shoulder. He concluded that Mr. Safi had pre-existing problems of his lumbar spine and left leg. On review of the CT scan of the Lumbar Spine, he had these conclusions: "the CT scan does show significant degenerative changes particularly at the L5-S1 level, [but they] are all chronic and in no way or form related to the Motor Vehicle Accident." ²⁰ [emphasis mine]

He offered an alternative theory to explain the changes seen in the ultrasound, which he attributed to the Applicant being right-handed. He added that [when viewing a tendonitis] "... the ultrasound signal is often more hypoechoic and the radiologist can ascertain that there is edema in the rotor cuff tendon." The radiologist's only comment was that this [ultrasound] is "evidence of a tendonitis."

Nevertheless, when a follow up ultrasound was done on July 13, 2006, the report contained the following statement:

INDICATION:

There is a 5 x 3 mm hypoechoic area seen in the mid portion of the right supraspinatus tendon. The left supraspinatus tendon is intact. No other rotator cuff tendon tar is seen. The biceps tendons are not subluxed.²¹

Thus, the very hypoechoic area which Dr. Bushuk suggested should have been present in a tendonitis was in fact observed in this later ultrasound.

Dr. Herman, the DAC chiropractor, also noted the ultrasound and stated that it showed "... remarkable findings about the right shoulder." [emphasis mine] Nevertheless, he added that these findings were unrelated to the accident because "... No impairment surrounding that region was documented by Simply Align Rehab."²²

On review of the record, an early report from Simply Align Rehab contained the following notation: "immediate symptoms include right shoulder."²³ Therefore, I find that Dr. Herman's conclusion that the ultrasound indications were unrelated to the accident was patently incorrect based on his misreading of the documentation.

Dr. Oshidari (physiatrist IME) concluded that the Applicant had initially suffered mild soft tissue injuries, but his presentation was disproportionate to the motor vehicle accident. Nonetheless, he also diagnosed Mr. Safi with Ongoing Chronic Pain. He added that Mr. Safi's prognosis was guarded,²⁴ making the following comments: "However, considering that [the applicant] is too pain focused, the chance of a successful return to vocational activities will be unusual."

Dr. Rod, an Insured's witness, reported that Mr. Safi had chronic pain syndrome,²⁵ and could benefit from a multi disciplinary pain program.

Dr. Potashner²⁶, a rheumatologist and Insured's witness, concluded that because the Applicant had not had problems prior to the accident, there was a "clear nidus" (sic) of problems to the motor vehicle accident. He also diagnosed fibromyalgia, and chronic pain syndrome.

Conclusions on Credibility:

I find therefore that while Mr. Safi may have described a level of pain that was not entirely consistent with the physical evidence, his reactions could have been explained by the fact that he had developed chronic pain and a heightened pain response. The subjective component of his presentation was not completely out of line with the objective pathologies shown in the ultrasound, CT scan and MRIs. Instead, I find support for Mr. Safi's subjective complaints in the testimony and evidence of both the Insurer's and Insured's medical witnesses. Most importantly, Dr. Conn, the Insurer's most probative witness, commented that the motor vehicle accident could have aggravated the pre-existing conditions shown in the CT scan and MRIs, and led to a prolongation of the resolution of his subsequent injuries. He agreed that in some cases, the symptoms never went away. Mr. Safi may even have been predisposed to a heightened pain response.

Dr. Bushuk, Dr. Herman, and Dr. Oshidari—all Insurer's or DAC experts—noted the degenerative changes in the CT scans and the MRIs, and were unconvincing in their attempts to explain away these pathologies or their impact on Mr. Safi. Dr. Oshidari also diagnosed ongoing chronic pain. Dr. Ogilvie-Harris, an Insured's witness, observed an adverse psychological or emotional response to the injury which led to a poor prognosis for recovery

Therefore, I find that Mr. Safi was credible in regard to his pain complaints, and that he developed chronic pain syndrome and fibromyalgia following the motor vehicle accident.

Causation and Psychological Linkage:

Sovereign's alternative argument was that the Insured's psychological and pain-related problems were not caused by the motor vehicle accident.

Sovereign relied on Dr. Debow who diagnosed Mr. Safi with Pain Disorder in Association with Psychological Factors, but attributed the disorder to pre-existing psychological factors relating to Mr. Safi's traumatic childhood in Afghanistan and Pakistan. Dr. Debow's conclusion was that Mr. Safi's Pain Disorder "...is not in direct relationship with the Motor Vehicle Accident."

He testified that pain is a subjective sense with two origins; one being the physiological processes in the brain, and the second being the interpretation of past events, including family history. The mere fact that a pain disorder arose after an accident did not mean that the accident caused the pain disorder.

He added that an event that took place 15 to 20 years ago could be the underlying cause of present symptoms because pain was "timeless" and the unconscious recalled it as if it had happened "yesterday."

His conclusion was Mr. Safi's pain disorder could have been caused by as minor an event as a "smell." In cross-examination, he testified that it was fair to say that the traumatic events in Afghanistan were the cause of the pain disorder.

I found that the usefulness of both Dr. Debow's report and testimony was limited by Dr. Debow's miscasting of the question he was required to examine. Clearly, he was of the opinion that the motor vehicle accident had to be "the direct cause" of the impairments. Arbitrators have unanimously determined that the motor vehicle accident need only be one direct cause of the impairment. Put another way, the motor vehicle accident needs only to have been a material or significant contributing factor in the cause of disability.²⁷

I prefer the analysis of the psychologist, Dr. Gholamine²⁸, which struck me as much more logical. She found that the loss of Mr. Safi's mother and sister years before did not have a long- lasting psychological effect on the Applicant, based on the observation that he did not have symptoms of pain disorder, and was happy, married, and leading a productive, stable life, before the motor vehicle accident. She stated that "... It is reasonable to conclude that his pain was 'triggered' by the physical injuries sustained in the accident rather than the past."

This position was at least partially accepted by some of the Insurer's own witnesses, including Dr. Bauer²⁹, a DAC psychologist, who concluded that as a result of childhood trauma, Mr. Safi was predisposed to an exaggerated psychological reaction and to prolonged recovery from the motor vehicle accident. He determined that the [Afghani] events of the past were "re-awakened by feelings of surprise and threat and lack of control in the motor vehicle accident." Dr. Bauer's conclusion is clearly closer to the one formulated by Dr. Gholamine than by Dr. Debow, and suggests that the motor vehicle accident was a trigger for Mr. Safi's psychological problems.

Other psychological witnesses also concluded that Mr. Safi had significant psychological issues.

Dr. Ozersky (psychiatric IME) observed that the Applicant showed multiple pain behaviours and inconsistencies with his presentation, but did not display visible signs of depression, or cognitive disturbance. He did diagnose a major depressive episode. He did not find that Mr. Safi was substantially disabled from his pre-accident employment or any other employment, but he recognized the need for further psychiatric treatment.³⁰

Dr. Langdon³¹ (psychiatric DAC) determined that Mr. Safi had developed some symptoms of Post Traumatic Stress Syndrome, and had become chronically depressed. Although this psychiatrist had knowledge of the Applicant's Afghani past, he made no linkage of these events to his present symptoms. He also diagnosed a major depressive disorder, which "...was having a significant negative impact on his physical recovery." He determined that Mr. Safi needed psychotherapy.

Dr. Daei³² (an Insured's witness) determined that Mr. Safi exhibited severe affective mood abnormalities, severe depression, anxiety, and that he needed therapy.

CONCLUSIONS:

The weight of the psychological opinions and evidence presented leads me to conclude that the motor vehicle accident was a material or significant contributing factor in causing Mr. Safi's depression, ongoing pain disorders, fibromyalgia, and chronic pain syndrome.

I also accept Dr. Kachooie's analysis that the motor vehicle accident was a primary causative factor for his current level of persistent pain, functional limitation, and disability. I find that Mr. Safi's pre-existing conditions, as shown in the CT scan and the MRIs, were aggravated by the motor vehicle accident.

Therefore, I also accept Dr. Kachooie's opinion that Mr. Safi is not able to perform any gainful occupational activities, and that he requires assistance for "heavy and physical demanding aspect of housekeeping tasks (sic)."

I accept Dr. Gholamine's conclusions that on a psychological level, Mr. Safi currently experiences clinically significant difficulties in sustained attention, concentration, speed of information processing, and assimilating new information. He is psychologically substantially disabled from performing the essential tasks of any employment for which he might be reasonably qualified.

I accept the conclusions of the vocational assessment³³ which graded Mr. Safi as having minimal English language skills and arithmetic abilities at a grade 8 level. It also stated that he would have difficulty reintegrating into the labour market and would likely face rejection from prospective employers given his physical disabilities and restrictions.

I am therefore satisfied that Mr. Safi has suffered a substantial inability to perform the essential tasks of his job, and since the 104-week mark in November 2004, has suffered from a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

Housekeeping and Home Maintenance:

I also find that as a result of the accident, Mr. Safi sustained an impairment that resulted in a substantial inability to perform the housekeeping and home maintenance services he normally performed before the accident. The benefit was claimed to the two-year mark and I am prepared to award an amount up to that date. Nevertheless, I was not convinced that the rate claimed, $100.00 per week, was warranted. The housekeeper, Touryali Safi, did not testify before me, and I found it difficult to determine the actual amount of work done, the frequency which he attended the house, and the tasks that he performed. The testimony of the witnesses was only that the housekeeper attended two to three times per week for three to four hours on each occasion. Some of the tasks that he performed appeared also to have been more in the nature of caregiving than housekeeping. Given this non-specificity, I find it appropriate to determine that the housekeeper attended for five to six hours per week. I thus award $50.00 per week for the time period claimed.

Medical and Rehabilitation Benefits:

Four treatment plans were at issue in the present application. They were the Soft Tissues Injections and Epidural Nerve Block plan submitted on June 16, 2003 by Dr. Kachooie, the Acupuncture Therapy plan of Khalil Kamali dated June 21, 2003, the plan for an Individualized Progressive Physical Conditioning Program by Dr. Maleki-Yazdi dated June 5, 2003, and the Massage Therapy plan prepared by Gerardo Ponce dated June 17, 2003.

The two plans by Dr. Maleki-Yazdi and Gerardo Ponce were the subject of a Med/Rehab DAC on September 16, 2003, and determined not to be reasonable and necessary. The two treatment plans for the injections and epidural nerve blocks, and acupuncture were never specifically referred to a DAC. They were denied without having been sent to a DAC, and letters were sent to Mr. Safi informing him of this decision.

At the conclusion of the hearing, Sovereign conceded that Belair had not complied with certain technical requirements under the SABs in regard to these plans (the injections and the acupuncture) and was thus prepared to approve the two treatment plans, although without admitting that they had been reasonable and necessary.

Mr. Safi agreed that the denial of these plans without a DAC led to a violation of section 38(12) of the SABS, but he argued that interest and a special award should be awarded over and above their mere payment. He added that it should not now be necessary for Mr. Safi to incur the actual treatments, given the long delay since their recommendation. He cited the decision of Fehringer and Zurich Insurance Company³⁴, wherein the arbitrator approved this statement:

While at first glance there is some logic to this argument, if allowed it would undermine the statutory goal of prompt and timely payment for necessary medical services. Insurers might deny payment of needed services with impunity, believing that an arbitrator will not later order them to pay for the treatments, however reasonable, because they can no longer be of benefit to the applicant. Although an aggrieved applicant can recover a special award if the hearing arbitrator finds that an insurer unreasonably withheld benefits, this penultimate remedy cannot substitute for prompt, regular treatments during the period of the entitlement.

I agree with this position. In the present case, Sovereign has, as recently as November 2006, approved very similar injection plans, although on a without prejudice basis.³⁵

In any case, I find that these two treatment plans were reasonable and necessary and should be paid with interest. As suggested, there was little evidence on which the Insurer could have denied those treatment plans. Dr. Kachooie, who prepared one of the treatment plans, sent a report to the adjuster on June 15, 2003, outlining his diagnoses, prognoses, and recommended treatments. Pain treatment and pain reduction were already a central theme of the treatment suggested by Dr. Kachooie at this early date.

In testimony, James Graves, the adjuster, agreed that these two plans were different from the chiropractic and massage plans previously submitted. I will have more to say in regard to these two plans when I turn to the consideration of the special award sought by Mr. Safi.

In regard to the two other plans that were denied, the Med/Rehab DAC of September 16, 2003 determined that the Individualized Progressive Physical conditioning program by Dr. Maleki-Yazdi, dated June 5, 2003, and the Massage Therapy treatment plan prepared by Gerardo Ponce, dated June 17, 2003, were neither reasonable nor necessary.

Having reviewed these plans, I find that they were also reasonable and necessary. As previously pointed out, the chiropractic assessor made a clear error when he discounted the "remarkable" findings about the right shoulder due to his belief that Simply Align Rehab had not documented this problem.

Given my conclusions in regard to Mr. Safi's credibility, I also find that Mr. Safi could well have benefited from the massage treatment plan which had as one of its stated goals, the object of pain reduction. The two plans should also be paid to the Insured with interest.

SPECIAL AWARD:

Mr. Safi outlined a number of reasons for his claim to a special award. First, he claimed that he was entitled to a special award due to the delay before the Insurer began paying his income replacement benefit. Mr. Safi applied for benefits shortly after his accident in November 2002, but only received IRBs in early February 2003. Nevertheless, it was clear that there was some initial confusion as to whether Mr. Safi had made a claim for Workplace Safety and Insurance Board benefits or for SABs benefits, although there was confirmation of the SABs claim in mid-December 2002.

Arbitrators have held that a special award determination is based on a factual examination of each case. "Unreasonable behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate."³⁶

In the present instance, I was not convinced that the adjuster's behaviour, while initially adjusting this file, violated these standards. He testified as to how he followed up at both the Insured's workplace and at the Workplace Safety and Insurance Board to determine whether the case fell within his purview. The delay was fairly short once he learned that the case had been finally determined by the Workplace Safety and Insurance Board, and I am not satisfied that it was "unreasonable."

The Insured's second argument was that the lack of a psychiatric component to the DAC assessment merited a special award. Again, I was not convinced that this was the case. Nothing in the evidence convinced me that the Insurer had any influence on the type of assessments to be carried out by the DAC assessors, and I accepted the adjuster's testimony that it was outside of his power to require a DAC to carry out a psychiatric assessment.

There were no other grounds on which I could order a special award, except for the manner in which the Insurer withheld the two treatment plans which were never made the subject of a DAC or other assessment. As already discussed, the adjuster admitted that the plans for injections and acupuncture were clearly unlike other plans previously submitted. There was no evidence on which to base a refusal, and substantial evidence that might have led to their approval. I find that the adjuster acted imprudently and excessively in denying them, and the Insurer unreasonably withheld or delayed their payment. This behaviour merits a special award.

Before turning to the amount of the special award, I will make the following comments.

In the present instance, the Insurer of record, Sovereign, was not the Insurer who initially adjusted the file. As a result of a priorities dispute, Sovereign only began adjusting the file in 2004. The initial Insurer was Belair, and it was Belair's adjusters who adjusted the file from November 2002 until its transfer to Sovereign.

Early in these proceedings, Sovereign put Belair on notice that a special award was being sought by Mr. Safi, and Mr. Trueman, a representative of Belair, appeared before me when I began hearing the evidentiary portion of this matter relating to the special award. I permitted Mr. Trueman to advise Belair's adjuster, James Graves, during his testimony, and to make objections should he deem it necessary, but I did not permit Mr. Trueman to make submissions or call evidence at that time, as I did not find that his principal had standing before me.

Nevertheless, when James Graves completed his testimony, Belair requested and I agreed to adjourn this case to allow Belair to make a motion to intervene or to make any other pleading it felt necessary to allow Belair to call evidence or to participate fully in the continuation and completion of this matter. I gave Belair 45 days to prepare and file their motion. Further evidentiary matters dealing with the special award were adjourned pending the hearing of Belair's motion. Shortly after allowing the adjournment, I received a written communication from Belair's counsel informing me that they no longer wished to bring any such motion or pleading before me. This matter was then reconvened, written submissions provided, and the hearing ultimately completed without the further participation of Belair.

In its submissions, Sovereign argued that I should not make any award against them because they were not the Insurers when the impugned behaviour regarding the two treatment plans took place. In essence, Sovereign argued that it would be unfair for me to punish them for something Belair had done. According to them, the only insurance company that could be the subject of a special award was Belair.

Nevertheless, Sovereign did not direct me to any caselaw supporting this submission. Nor did Sovereign provide me with any caselaw confirming that I could make an order against an insurance company that had not been a party to my proceedings.

In examining this question, I am guided first by section 282(10) of the Insurance Act which reads as follows:

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

I note that this provision makes no distinction in regard to whether the insurer was adjusting the file at the time of the impugned conduct.

Second, I am guided by the decision of the Director of Arbitrations in Vieira and Royal and Chubb. In that case, the Director examined a situation where an insured, Mrs. Vieira, was "caught between two insurers, each claiming that the other is responsible for paying her accident benefits – precisely the situation the Priorities Regulation was meant to eliminate."³⁷

In his analysis, the Director held that the word "insurer" should be given a broader interpretation, rather than a narrow, technical one. He made the following comments:

Before the Priorities Regulation came into effect, insurers could deny claims on the basis that another insurer should be paying, whether due to lack of coverage or an assertion that the other insurer had priority. This raised a dispute in respect of the "insured person's" entitlement to statutory accident benefits and, therefore, they could use the dispute resolution process. In these cases, however, the insured person often had to wait until the insurer dispute was resolved before receiving any benefits. As discussed in a number of decisions, including my appeal decision in Mohamed, this is the problem the Priorities Regulation was meant to address. (at page 10)

Further he added:

The question is whether, in determining the insured person's entitlement to benefits, a FSCO arbitrator can still consider coverage as part of the entitlement issue. The argument is reasonably compelling – how can an insurer be ordered to pay benefits without determining that it had an obligation to do so under a policy in force at the time of the accident? In my opinion, however, this question is answered by the legislation. All disputes about which insurer must pay the benefits – the who pays question – are decided under the Priorities Regulation. This leaves FSCO arbitrators and judges to determine the entitlement – the what, if any, benefits question. [emphasis mine] (at page 11)

Having regard to this analysis, I find no reason to treat a claim for a special award differently from a claim for a benefit, and I am prepared to apply a broad definition to the word "insurer." In the present instance, Mr. Safi finds himself caught in the same dilemma that Mrs. Vieira faced. Therefore, I feel no constraint in ordering Sovereign to pay the special award. I also note that Sovereign has had carriage of the file since early 2004. Even if I accepted Sovereign's argument that it could not be responsible for Belair's denial which took place in June 2003, the withholding of these benefits has been continuous, and therefore Sovereign cannot escape, at the very least, partial responsibility even under its own analysis.

In any case, I leave this matter of who ultimately pays to the insurers, and turn now to the amount of the special award.

In the present instance, Sovereign agreed that there had been a "technical breach" in the denial of these two treatment plans, and stated that it was prepared to pay these amounts on the last day of the hearing. Mr. Safi argued that he was still entitled to interest and a special award. I agree. For reasons mentioned above, I have already determined that the Insurer's denial of these treatment plans was unreasonable and merited a special award. The unilateral payment by the insurer of the benefit before a hearing does not relieve an arbitrator of the jurisdiction to make a special award, although the unilateral payment might ultimately be viewed as a mitigating factor in the determination of the amount.

In this case, I have no confirmation that the payments were made. Therefore, to determine the amount of the special award, I am ordering Mr. Safi and the Insurer to contact the Financial Services Commission of Ontario through the appropriate Case Administrator in this file so that submissions may be made to determine the special award amount. The parties should contact the appropriate person no later than thirty days after receiving this order.

EXPENSES:

If the parties are unable to agree on expenses, a hearing may be requested in accordance with the Dispute Resolution Practice Code.

January 23, 2008

Edward Lee Arbitrator

ARBITRATION ORDER

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

Sovereign shall pay Mr. Safi a weekly income replacement benefit of $400.00 per week from July 9, 2003, continuing and ongoing.
Sovereign shall pay Mr. Safi a medical benefit of $1, 920.00 for nerve injections, $1,290.00 for acupuncture, $1,540.00 for massage therapy, and $4,500.00 for an individualized progressive physical conditioning program.
Sovereign shall pay Mr. Safi for housekeeping and home maintenance services in the amount of $50.00 per week from June 20, 2003 to November 5, 2004.
Sovereign is liable to pay a special award to Mr. Safi. The amount of the special award is to be determined following submissions by the parties.
If the parties are unable to agree on expenses, a hearing may be requested in accordance with the Dispute Resolution Practice Code.
Sovereign shall pay Mr. Safi interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.