Mr. C v. Kingsway General Insurance Company, 2008 ONFSCDRS 104

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 104

FSCO A04-001815

BETWEEN:

MR. C

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: David Leitch

Heard: March 5, 6, 7, 8, 2007, December 17, 2007, January 10, 2008, May 4, 2008, March 31, 2008 and April 2, 2008.

Appearances: John S. Lockhart for Mr. C Darrell March for Kingsway General Insurance Company

Issues:

The Applicant, Mr. C, was involved in three motor vehicle accidents in 2001: on March 26, on April 13 and on October 29. He applied for and received statutory accident benefits¹ from Kingsway General Insurance Company (“Kingsway”) but disputed Kingsway’s termination of weekly income replacement benefits (“IRBs”) on October 6, 2002. The parties were unable to resolve this dispute through mediation and Mr. C 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. C entitled to IRBs after October 6, 2002 pursuant to sections 4(1) and 5(2)(b) of the Schedule?
Is Mr. C entitled to a special award pursuant to section 282(10) of the Insurance Act?

Result:

Mr. C is not entitled to IRBs after October 6, 2002.
Mr. C is not entitled to a special award.

Introduction

On March 26, 2001, the date of the first of his three accidents in 2001, Mr. C was almost 25 years old. He had been working full-time in the warehouse of a truck parts company for about two and a half years. He maintained that his three motor vehicle accidents in 2001 left him unable to return to work at his pre-accident job and that he was, therefore, entitled to IRBs during the first 104 weeks after the accident pursuant to section 4(1) of the Schedule. He claimed IRBs thereafter pursuant to section 5(2)(b) on the ground that he suffered a complete inability to engage in any employment for which he was reasonably suited by education, training or experience.

In addition to his own evidence, he called as witnesses his parents, a friend and two doctors: Dr. G. B. Molnar, his family doctor, and Dr. Henry Berry, a neuro-psychiatrist who reviewed his records and examined him on June 16, 2006. Mr. C also exercised his right to cross-examine the authors of two of the reports relied upon by Kingsway. Mr. C’s claim focused on his complaints of pain and his alleged psychological inability to work.

Kingsway responded that any impairment Mr. C sustained as a result of his accidents was insufficiently disabling to establish his entitlement to IRBs beyond October 6, 2002. It relied upon the reports of a variety of its own examiners and of Designated Assessment Centres (“DACs”), some of whom examined Mr. C more than once. In the alternative, Kingsway argued that the three 2001 accidents were not, in any event, the likely cause of Mr. C’s problems. Relying on the opinion of one of its examiners, Kingsway pointed to an alleged underlying psychological condition unrelated to Mr. C’s car accidents. In addition, Kingsway argued that Mr. C was involved in a motor vehicle accident on April 23, 2000 that was more traumatizing than any of his 2001 car accidents. In the April 2000 accident, Mr. C was driving and one of his friends was killed. Kingsway was not the insurer for the April 2000 accident.

After reviewing the background evidence, I will address first the issue of causation. I will find that the 2001 accidents contributed in a material or significant way to Mr. C’s complaints of pain and psychological problems. However, I will go on to conclude that Mr. C did not discharge the onus of proving that these complaints rendered him unable to return to work at his pre-accident job after October 2002. It follows that he is not entitled to IRBs after the 104-week period.

Background Evidence

The only evidence I received about the April 23, 2000 accident came from Mr. C himself, either through his previous descriptions of the accident or through his testimony at the hearing. I did not receive a police report, witness statements or auto damage information about this accident.

The day after the April 23, 2000 accident, Mr. C told Dr. Molnar, his family doctor, that he was exiting a highway when his vehicle was “hit by a white car, front 2 wheels fell off & car flipped.” On February 27, 2001, Mr. C provided the following description of the accident to Dr. D. Goldstein of Health Impact Multidisciplinary Assessment Centres (“Health Impact”):

Mr. [C] reported that he was traveling at a speed of 100 to 120 kph on Highway 410 when the front wheel on the passenger’s side came off his vehicle. He reported that he lost control of his vehicle and struck a median railing and then the vehicle flipped or rolled over several times in the air according to an onlooker. Mr. [C] reported that he remembered the airbags going off inside the car and that he could not tell exactly what was happening until the vehicle came to a stop, positioned on the median of the road upside down.

Mr. [C] looked over to the front seat passenger and realized that he had expired and then got out of the vehicle through his window.²

On March 9, 2001, Mr. C provided descriptions to two other assessors at Health Impact. He did not mention anything about a wheel coming off his vehicle³ and he said that both of the passengers were ejected from the vehicle.⁴

At the hearing, Mr. C testified that the accident occurred early in the morning when he was coming home from a wedding with two friends. He was driving in the exit lane of a highway when he lost control of the vehicle causing it to hit the guardrail and flip over. He did not mention anything about his vehicle being hit by a white car. He could not say the speed of the vehicle. He stated that a wheel came off the vehicle but that he could not be sure whether it came off before or after the collision. He testified that prior to the accident, he had noticed a noise in the right front wheel of the vehicle and that someone in a garage told him that this noise was related to the “ball joint”. He was not told that the car was not driveable. He stated that he was going to have the problem fixed but did not.

Despite the differences in how Mr. C described this accident, I have no difficulty believing that it was capable of causing him later psychological problems. Mr. C could have felt responsible for the accident and the death that resulted. There was evidence that at least some members of the deceased’s family blamed Mr. C for the accident. Even though Mr. C denied that the accident was his fault (he blamed the death on his friend’s failure to wear a seatbelt), he still had to deal with the fact that he had been involved in an accident resulting in the death of a friend.

There was no evidence that Mr. C manifested any disabling psychological symptoms following the accident of April 23, 2000. He acknowledged that he sustained injuries to his shoulder, back and neck in the April 2000 accident but testified that after six to eight weeks on modified duties “in the office”, he “eased back into work in the warehouse”. In addition, none of the assessors at Health Impact who examined Mr. C in February and March 2001, including Dr. Marton, a psychologist, found any reason why Mr. C could not resume his pre-accident job in the warehouse.⁵

Mr. C testified that his next accident, on March 26, 2001, caused him to experience pain in the stomach, back, neck, left knee and left hand. Still, he stated that he expected to get better and return to work as he had following the April 2000 accident. But before he could do so, he explained, the next accident of April 13, 2001 intervened, causing him to experience pain in his neck, back, right knee and right hand. He claimed that when he spoke to his supervisor, Mr. Kevin Little, about returning to work following this latest accident, Mr. Little refused to offer him modified duties and would only allow him to return to work after he had “properly healed”. Mr. C described this as a different approach than that taken by his employer following his April 2000 accident.

However, the documentary evidence does not indicate any different approach by the employer following Mr. C’s accident of April 2001. On June 13, 2001, Mr. Little, the employer’s facility manager, completed a form entitled “Physical Demands of Occupation” confirming that Mr. C’s job in the warehouse could not be “modified to accommodate claimants [sic] physical restrictions”.⁶ But when interviewed for a job evaluation on June 5, 2001, Mr. Little apparently also stated: “modified duties and hours can be discussed in the future”. A copy of this job evaluation was sent to Mr. C’s representative at the time and was included in the documentation Mr. C presented at the hearing.⁷

Mr. C’s final accident happened on October 29, 2001. He testified that this accident caused him to experience headaches and pain in the neck, shoulders, lower back and eyes. But unlike any of his previous accidents, he asserted, this last accident caused him to experience psychological problems such as a lack of desire to go out or to think about the future, feelings of sadness and anger and problems with eating and sleeping. The severity of these symptoms, he maintained, has varied with medication and nerve block injections but have left him feeling hopeless, worthless and worried about his future. He said he experiences pain, fatigue or numbness at several sites in his body, including his head, knees, neck, shoulders, thigh, back, legs, feet, hands, all over his face and jaw. He has been unable to work, he asserted, because pain has become his full time job and because he is nervous around people and can no longer work to schedules or tolerate people telling him what to do.

There was no serious dispute that the period of almost a year between the date of this last accident and the date of termination of IRBs was adequate for Mr. C to recover sufficiently from his physical injuries to be able to return to work. The dispute was about whether the three 2001 accidents left Mr. C with a chronic pain condition and a psychological inability to cope with the requirements of either his former job or any other employment for which he is suited. That dispute generates two main issues, causation and degree of disability, and two sub-issues in relation to causation, as set out below.

Causation

Did Mr. C suffer from a psychological condition unrelated to his car accidents?

On March 2 and 23, 2005, Mr. C was examined by Dr. Deborah Cowman, a registered psychologist at Work Able Centres Inc. Her report raised the possibility that Mr. C suffered from an underlying psychological condition known as Bipolar Disorder and stated: “it is unlikely that such a condition would be the result of the subject motor vehicle accidents.” However, Dr. Cowman acknowledged at the hearing that she had insufficient information about Mr. C’s pre-2000 mental health and family background to confirm this diagnosis. Her report mentioned Mr. C’s “acting out” and “extreme mood swings” as symptoms of this condition but pointed to only one ambiguous example of such behaviour prior to 2000.⁸ Moreover, while Mr. C himself reported this behaviour to Dr. Cowman, he denied any significant pre-accident mental health problems. As to the importance of family background, Dr. Cowman stated that the condition is genetic in two thirds of the cases. She testified that a diagnosis of Bipolar Disorder is more reliably arrived at with knowledge of family background and school records, neither of which she had. Despite this, Dr. Cowman’s report and notes⁹ do not indicate that she asked Mr. C about any family history of psychological problems. Nor, despite being given a copy of the report, did Dr. Cowman mention the fact that a psychiatric report completed in 2002 states that Mr. C denied any family psychiatric history.¹⁰

In my view, Dr. Cowman’s evidence did not support either a finding that Mr. C has Bipolar Disorder or a finding that this condition causes or contributes to his alleged inability to work.

Was the 2000 accident the only significant cause of Mr. C’s problems?

I accept that Mr. C’s April 2000 accident was more traumatizing than his 2001 accidents. Unlike the former, the latter did not involve cars flipping over at high speeds or people dying. Still, the evidence does not support a finding that the April 2000 accident was the only significant cause of Mr. C’s problems.

In her report, Dr. Cowman described all four accidents and observed:

“Mr. C began to suffer from chronic pain following his accident in the year 2000 and has experienced an exacerbation of this pain condition in his three subsequent accidents with injuries. He likely meets the DSM-IV diagnostic criteria of a Pain Disorder with Associated Psychological Factors and General Medication Condition, which was pre-existing but exacerbated by the subject motor vehicle accidents.”¹¹

Dr. Berry’s report referred only to the “musculoskeletal strain” Mr. C suffered in the April 2000 accident, stating since “he was able to continue with his heavy work and other activities ... this accident probably did not contribute in a significant way to his subsequent health problems.”¹² However, during his examination-in-chief, Dr. Berry was asked the following question and gave the following response:

Q. ... As you know, the first accident was much more traumatic, resulting in the death of his friend, than the other three accidents. Why is it your opinion that the cause is the last three accidents rather than the original one, given the difference in the psychological trauma of the first accident compared to the other three?

A. The bottom line would be that he was able to function afterwards. My understanding [was] that he didn’t require any immediate medical attention. He saw his doctor, it may have been the next day or later. He had low back pain off to the left and leg pain. Was off work for a week. Went to his friend’s funeral. He received chiropractic and physiotherapy and massage, and he got back to light work and then to driving the tow motor. So that a measure of how much something disturbs one is their function. Can they [get] back to functioning and at what level are they functioning? And he did return to a good level of function. There were some changes in his life, and certainly I think he remained predisposed or more vulnerable to further effect of accidents because of that experience. It was a nasty kind of accident and a close friend was killed and the family apparently blamed him for that death, so that it [was] an event, it made him more vulnerable to psychological effects or further accidents in an understandable way, a common sense way.¹³

In my view, the combined evidence of Dr. Cowman and Dr. Berry establishes that it was the cumulative effect of all four accidents, not just the last three, which caused or contributed to Mr. C’s pain condition and psychological problems. The April 2000 accident played a significant or material role but, I find, so did the three accidents in 2001.

Degree of Disability

In order to qualify for IRBs during the first 104 weeks after the accident in accordance with section 4(1) of the Schedule, Mr. C had to prove that he suffered “a substantial inability to perform the essential tasks” of his pre-accident employment. I heard no submissions about which of the three accidents started the 104-week period running but the outside limit of this 104-week period would be October 29, 2003, two years after Mr. C’s last accident. After that date, Mr. C’s entitlement to IRBs was governed by the more stringent test imposed by section 5(2)(b).

The Disability Assessments

Prior to the termination of IRBs in October 2002, Mr. C underwent four multidisciplinary disability assessments.

On September 12, 2001, that is, prior to his last accident in October 2001, Mr. C underwent insurer examinations at Work Able Centres Inc. Dr. John A. O’Reilly, a physiatrist, was unable to find “any musculoskeletal abnormality to account for his described symptoms” and concluded that he was able to return to his pre-accident employment.¹⁴ A Functional Abilities Evaluation also concluded that “Mr. C is not considered substantially disabled from performing his pre-accident essential tasks.” This evaluation was based on Mr. C’s ability to perform tasks similar to those identified in the job evaluation obtained through the interview with Mr. Little on June 26, 2001.¹⁵

A Disability DAC assessment was requested but did not take place until December 2001, after the accident of October 29, 2001. Dr. G. Abraham of the William Osler Health Centre noted that it was “difficult to speculate as to his fitness level prior to this last accident in October”. Still, he was satisfied that that the neck and back injuries sustained in the October 2001 accident were “significant enough to substantially disable him”, an opinion shared by the physiotherapist who examined Mr. C and by the kinesiologist who conducted the Functional Abilities Evaluation.¹⁶ However, the kinesiologist noted a variety of “discrepancies” in the information about the physical demands of Mr. C’s job. Some arose from differences between Mr. Little’s description of the lifting demands of the job and Mr. C’s description. In particular, Mr. C told the kinesiologist that he could not get help lifting heavier items as Mr. Little had suggested in the job evaluation. Mr. C informed the kinesiologist that he was required to work independently of others and would have difficulty getting such help. It was not entirely clear from the report how the kinesiologist resolved this discrepancy for purposes of the evaluation, though as we shall see, he returned to the subject in a subsequent evaluation.

In view of the accident on October 29, 2001, Mr. C underwent a further set of insurer examinations at Work Able Centres Inc. in April 2002. He was assessed again by Dr. O’Reilly who found that he had recovered from any soft tissue injuries he may have sustained in the October 2001 accident and that he was now “quite capable of performing all of his pre-accident employment duties.”¹⁷ Mr. C. was also assessed by a psychologist, Dr. Daniel Cohen. While Mr. C apparently told Dr. Cohen that he could not resume his pre-accident employment due to pain, Dr. Cohen concluded that Mr. C’s complaints “do not meet the criteria for a diagnosable mental disorder, including a psychologically based pain disorder” and that he was not psychologically unable to return to his pre-accident work.¹⁸ A further Functional Abilities Evaluation was also conducted at Work Able Centres Inc. but since these assessors were also uncertain about the physical demands of Mr. C’s employment, they decided to communicate directly with Mr. Little. Mr. Little apparently told them on June 20, 2002 that employees doing that job “are able to enlist the help of other employees if they feel that a weight load is beyond their lifting/carrying capabilities.” Based on that information, the assessors concluded that Mr. C did not suffer from a substantial inability to perform his pre-accident employment.¹⁹

These opinions led to a further Disability DAC at the William Osler Health Centre in September 2002, conducted by the same assessors who had examined Mr. C in December 2001. Dr. Abraham stated that since it was now nine months after Mr. C’s last accident, any soft tissue injury had certainly healed and that Mr. C was “not suffering from a significant physical impairment which would be enough to substantially disable him from his previous occupation.”²⁰ The physiotherapist also stated that she could find no “substantial musculoskeletal disability that would prevent him from performing the essential tasks of his previous occupation.”²¹ The report of the Functional Abilities Examination concluded: “Mr. C demonstrated abilities equal to or greater than the job demand in all areas”.

In reaching this latter conclusion, the kinesiologist stated that he assumed that Mr. C “had resolved his concerns with the discrepancies in the documents at the time of the previous assessment as they were not raised again this time. As such, there are no changes to the job demands from the documents reviewed at the time of the first assessment and will be used in the same manner for this assessment.”²² The only documents reviewed at the time of the kinesiologist’s first assessment in December 2001 were those created in June 2001, including the job evaluation Mr. C had previously told the kinesiologist he did not agree with. It can thus be concluded that, despite Mr. C’s earlier objections, both of the Functional Abilities Evaluations conducted by this kinesiologist were based on Mr. Little’s written descriptions of Mr. C’s job.

To summarize, by the time Mr. C’s IRBs were terminated in October 2002, his ability to return to his pre-accident work had been assessed in September 2001, December 2001, April 2002 and September 2002. Each time, the assessment included a Functional Abilities Evaluation. All of the Functional Abilities Evaluations were based on Mr. Little’s written descriptions of Mr. C’s job. The conclusion of three of the assessments was that Mr. C was able to return to his pre-accident employment. The only assessment that concluded that he was not able to return to work took place about a month and a half after his October 29, 2001 accident. Nine months after that accident, in September 2002, the same DAC assessors reached the opposite conclusion.

Despite his earlier objections to information provided by Mr. Little, Mr. C did not challenge the Functional Abilities Evaluations on the ground that they were based on an inaccurate understanding of the physical demands of his job. Instead, he attempted to establish that he was unable to return to that or any other job due to chronic pain and psychological problems. In this regard, Mr. Lockhart questioned why the second Disability DAC, conducted in September 2002, did not include a psychological assessment. This was a reasonable question in view of the fact that Mr. C had undergone an insurer’s psychological assessment by Dr. Cohen in April 2002. In addition, Dr. Abraham’s report from this Disability DAC included the following observation: “After reviewing his pain diagram he certainly appears to be focusing on his pain. One wonders about underlying psychological difficulties. However, clinically he did not appear to be having any cognitive or psychological issues.”²³ But Dr. Abraham was neither a psychologist nor a psychiatrist. In my view, an assessor with those qualifications should have also examined Mr. C at the second Disability DAC.

Still, in order to take advantage of this oversight, and establish a basis for his claim, Mr. C had to present evidence that he was, indeed, unable to return to his pre-accident work due to his pain condition and his psychological problems. To do so, he relied on his own evidence, the evidence of his family doctor, Dr. Molnar, and the reports and records of the other doctors to whom he was referred by Dr. Molnar. In early 2002, he was seen by a psychiatrist, Dr. Victor Ali, and by a doctor specializing in pain control, Dr. Mark Greenspoon of the Headache and Neck Pain Medical Centre. In turn, Dr. Greenspoon referred Mr. C to a local Health Centre where he received treatment from Dr. D. Watkins and Dr. Eric Grief, “GP psychotherapists” from October 2003 to at least December 2004. Finally, Mr. C relied on the evidence and report of Dr. Berry who assessed him in June 2006.

Mr. C’s post-accidents attempts to work at other jobs

Mr. C gave evidence about how he tried, but was unable to keep, two jobs even though they were less physically demanding than his pre-accident job.

He testified that he worked at a telemarketing job for a few months in the summer of 2002 but stopped working there because he was in too much pain to go to the meetings he was required to attend. Then in October 2002, he testified, he started his own courier business out of his own home, using his own car.²⁴ Documents entered supported Mr. C’s testimony that in April 2003, this part-time self-employment evolved into what was really a third, full-time job in the office of his only courier client, GOA Freight.²⁵ He stated that he made telephone calls, monitored waybills, manifests and invoices and managed a Xerox account. He testified in-chief that he was let go in July 2003 but his evidence about the reasons for the dismissal was not clear. He stated that he started to get into arguments with people but he also stated that he was asked to take a more physically demanding position in the warehouse and refused. Moreover, on cross-examination, Mr. C said he quit and admitted that he sometimes drank vodka before going to or at work.

When examined by Dr. Cowman in March 2005, Mr. C gave the following post-accident employment history:

… he worked for a “marketing group”, “ACN”, for a “few months” in 2002. He detailed that he undertook “marketing by telephone and in person” for this company. He noted that he was able to set his own hours, and worked a total of approximately one to two hours per week. He related that he left this job due to “pain, stress, and problems concentrating”. Lastly, he reported that he registered his own company, under the name “Labinia” [“Lavina”], at the end of 2002. He stated that he personally performed “courier work” for a single client, “GOA Freight Systems”, and did not have any employees. He detailed that he undertook long distance driving to locations such as Windsor and Kingston for approximately two months, and then did driving within the metropolitan Toronto area for another two months. He related having experienced “thoughts of driving into ongoing [oncoming] traffic while working in this capacity. He recounted that he then accepted a “job in the office”, in which he was “being trained to be a warehouse manager”. He described the quality of his work while he was in this position as having been good. He noted however that he “had found it hard to abide by a schedule when in pain”, and had found that his “work load piled up”. He related having experienced “mental anxiety and depression”. He observed that “the office work was worse than the driving because of being around people”. He reported that he quit in July of 2003 and has been off work since. ²⁶

Dr. Berry’s report gave a much briefer post-accident employment history. It stated: “During the year 2002 he worked at a marketing company telemarketing, for three to four months, but lost interest.” Dr. Berry confirmed at the hearing that this is the expression Mr. C used: “lost interest”. Dr. Berry’s report then stated: “He worked as a courier, driver and then at office work for six to seven months. He referred to difficulties in registering a company because of problems with the bank and his credit was poor. His emotions were troubled, he was in pain and he stopped work. He has not worked since that time.”²⁷

This body of evidence is inconsistent in relation to the critical question as to why Mr. C stopped working at his two post-accident jobs. Did he leave his telemarketing job due to pain and stress or because he lost interest? Did he quit his office job at GOA Freight due to pain and stress or was he “let go” for unrelated reasons? I am unable to draw any inference in Mr. C’s favour from this evidence. On the contrary, I find that if Mr. C was able to hold down his office job at GOA Freight for four months, from April to July 2003, this is likely because he was able to do that job. Of course, that does not prove or disprove that he was able to do his pre-accident job during this period. However, it does effectively counter the opinions of Drs. Molnar and Berry, set out below, that Mr. C has been rendered completely unemployable by his 2001 accidents.

Dr. Molnar

Dr. Molnar’s evidence consisted of clinical notes and records, Disability Certificates, reports and oral testimony. There is no question Dr. Molnar sought to support Mr. C’s claim but, in my view, his evidence suffered from a number of weaknesses.

First, Dr. Molnar made an early, and feeble, attempt to downplay the significance of the first two assessments. In a letter dated March 3, 2002, Dr. Molnar observed: “He happened to have a good day on September 12th [2001] when he had an assessment by the Insurance Company. He also had a DAC in December [2001] that showed that he had problems. Therefore, I conclude that he had a continuous disability through those months and into the present.”²⁸

Second, I was struck by Dr. Molnar’s apparent willingness to simply accept Mr. C’s view about his ability to return to work. In a referral letter to another doctor on March 16, 2002, Dr. Molnar made the following observations:

Limitations & restrictions: his job is that of a lift truck operator, he feels that this is too heavy for the amount of pain that he is feeling. Considering how he feels after work hardening that is probably the case. ...²⁹

Dr. Molnar also acknowledged at the hearing that his belief that the employer would not provide modified duties was based on information provided to him by Mr. C.³⁰

Third, I note the lack of clarity in some of Dr. Molnar’s reports regarding the effects of Mr. C’s 2001 accidents. In a report to Human Resources Development Canada dated March 15, 2002, Dr. Molnar diagnosed “back strain - chronic, left shoulder strain, depression” but did not say that Mr. C was not capable of attempting a return to work. On the contrary, he provided this rather open-ended prognosis: “Poor. He is overwhelmed by the pain. The psychiatrist and pain clinic hopefully will help this but it is uncertain.”³¹ In a letter written much later, on October 8, 2005, Dr. Molnar described Mr. C’s inabilities as “moderate” and made no reference to an inability to work. He wrote:

Since March 25, 2001 I have seen him 88 times.

His medical health has been good except for his several car accidents and an assault in August 2004. These have left him with chronic back [pain], poor sleep and depression.

... There is also the chronic pain in his back and legs as well as a feeling of dizziness.

I feel that he is moderately disabled by his feelings of pain and the depression. These have a moderate impact on his lifestyle. I feel that this is continuous and will last more than a year. A psychiatrist will be better able to judge the mental disability.³²

Fourth, I note the absence of any Disability Certificates or other reports from Dr. Molnar between October 2002, when IRBs were terminated, and October 2003, the outside limit of the 104-week period. Dr. Molnar’s clinical notes³³ for this period record Mr. C’s complaints of pain and a foot injury in August 2003 but they do not explain why, from a medical point of view, his accident-related problems prevented him from at least attempting a return to work.

I acknowledge Dr. Molnar’s letter to Mr. Lockhart dated February 1, 2007 in which he states:

[Mr. C’s pre-accident job] is somewhat physically demanding and he has not been able to return to work. He has tried many jobs and training programs but has not been able to cope. These had required concentration or prolonged sitting which he was unable to do.

The pain he has prevents him from doing anything that he has tried. From the jobs that he has tried, I do not forsee him being able to do anything at all.³⁴

Nonetheless, there is no evidence that Mr. C ever tried to return to his pre-accident job prior to October 2003 or, assuming they were available, to seek modified duties with the same employer. Dr. Molnar did not provide any reason to think that by October 2002 such attempts would have been detrimental to Mr. C’s treatment or recovery. In short, I am not prepared to assign greater weight to Dr. Molnar’s opinion than to the opinions of the disability assessors. Indeed, at the hearing, Dr. Molnar ultimately deferred to those opinions.

Dr. Ali, Dr. Watkins and Dr. Grief

Dr. Ali examined Mr. C only once, on April 16, 2002, at the Credit Valley Hospital(“Credit Valley”). Since Dr. Ali did not receive a referral letter from Dr. Molnar or any other medical documentation, his report was based on information obtained from Mr. C and his own examination. The Summary and Treatment Recommendations of his report read as follows:

There was little to suggest, in terms of an initial meeting with the patient, that he may be clinically depressed. In spite of this, the patient has had some difficulty in moving on with his life. At this time, it is my understanding that he has been referred by his insurance company to have an assessment by an independent psychological firm. The patient and I have mutually agreed that he will attend this assessment, upon which he would be in contact with me should he decide to continue with the program offered through the Credit Valley Hospital. ³⁵

The insurer psychological assessment Dr. Ali was referring to was the assessment conducted by Dr. Cohen the next day, on April 17, 2002. Dr. Ali’s report said nothing to contradict Dr. Cohen’s opinion that Mr. C was not psychologically impaired or psychologically unable to return to his pre-accident work. On the contrary, Dr. Ali found little clinical evidence of depression and expressed no opinion about Mr. C’s psychological ability to return to his pre-accident job.

Dr. Ali’s report, dated August 23, 2008, concluded by observing that Mr. C. did not return for treatment at the Credit Valley Hospital. It was not until October 15, 2003, the outside limit of the 104-week period, that Mr. C started psychotherapy with Dr. Watkins and Dr. Grief, treatment that continued until at least December 9, 2004. The records of these doctors confirm that Mr. C complained of headaches and pain in the neck, back and left thigh. However, these records also confirm that Drs. Watkins and Grief never diagnosed anything more serious than moderate depression. In addition, Drs. Watkins and Grief were never asked to assess Mr. C’s ability to return to his pre-accident employment and appear to have never formed an opinion about that issue. The only comment either of them made about Mr. C’s ability to work is found in Dr. Grief’s report dated June 30, 2005: “I consider Mr. [C] able to physically find work, however, mentally he is depressed and anxious and this exacerbates his pain condition.”³⁶ It was not clear that this meant that Mr. C was psychologically unable to work; it was far less clear that it meant that he was psychologically unable to return to his pre-accident job after October 2002.

In my view, the combined evidence of Drs. Ali, Watkins and Grief falls well short of a successful challenge to Dr. Cohen’s opinion in April 2002 that Mr. C was psychologically able to return to his pre-accident work.

Dr. Greenspoon

In two Human Resources Development Canada forms dated October 21 and November 5, 2002, Dr. Greenspoon stated that Mr. C had a “chronic mysfascial [sic] spasm” and “is currently unable to work”.³⁷ A third Human Resources Development Canada form completed by Dr. Greenspoon dated December 31, 2002 stated: “nerve blocks provide transient relief for 1 week”.³⁸ However, other documentary evidence suggests that Dr. Greenspoon only saw Mr. C twice before completing the first two forms and did not start to provide injection treatments to Mr. C until December 2003. This other documentary evidence can be summarized as follows.

Dr. Molnar’s referral letter to Dr. Greenspoon was dated March 16, 2002.³⁹ Dr. Greenspoon first saw Mr. C on June 19, 2002 and sent Dr. Molnar a reporting letter dated June 25, 2002. In that letter, Dr. Greenspoon stated that he intended to prescribe medication to control Mr. C’s headaches, neck pain and shoulder pain but that he had also told Mr. C that if medication proved ineffective, nerve block or botox injections could be considered.⁴⁰ Dr. Molnar’s clinical notes indicate that Mr. C saw Dr. Greenspoon again in July 2002⁴¹ but then not again until December 2002, well after the dates that forms were completed. Moreover, while Dr. Molnar’s clinical notes indicate that Dr. Greenspoon started injection treatments almost immediately, in July 2002⁴¹, that appears to conflict with Dr. Greenspoon’s stated intention to try medication first. Likewise, Dr. Greenspoon’s reporting letter to Dr. Molnar, dated June 19, 2003, suggested that the only treatment Mr. C had received to that point consisted of various medications and Mr. C’s involvement with a fibromyalgia support group. This letter did not mention any previous nerve blocks injections. Rather, it stated: “Once [Mr. C] meets with Dr. Ali and has had the CT scan and the other pain management medications have been tried, I look forward to providing you with an update ...”.⁴² Furthermore, the records of Dr. Greenspoon’s Headache and Neck Pain Medical Centre indicate that Mr. C only received injection treatments there between December 2, 2003 and February 17, 2005.⁴³

In my view, this evidence establishes that the opinion Dr. Greenspoon expressed in the Human Resources Development Canada forms dated October 21 and November 5, 2002 was probably based on only two appointments with Mr. C in June and July 2002. It also creates substantial doubt about the nature of the investigation undertaken and treatment provided by Dr. Greenspoon at these appointments.

I find that this evidence does not support a decision to assign greater weight to Dr. Greenspoon’s opinion than the opinions of the disability assessors.

Dr. Berry

Dr. Berry’s report concluded that Mr. C “has been completely disabled for any form of work” since his three accidents in 2001.⁴⁴ This obviously constituted an opinion that Mr. C was also unable to return to his pre-accident job after October 2002. Here again, however, there are good reasons to question Dr. Berry’s opinion.

First, Dr. Berry did not examine Mr. C until June 10, 2006, three and half years after IRBs were terminated and two and half years after the outside limit of the 104-week period. While Dr. Berry reviewed earlier medical documentation,⁴⁵ his report confirms that his own examination focussed on Mr. C’s then current symptoms and ability to work. I note that when addressing the specific issue of Mr. C’s ability to return to his pre-accident job, Dr. Berry wrote: “He is now disabled for his former heavy work by the combination of residual musculoskeletal, cervical and lumbar pains which are added to by the ongoing depression and anxiety state…”⁴⁶ [my emphasis]

This would not be a reason to doubt Dr. Berry’s opinion if Mr. C’s condition had not deteriorated over time but Dr. Berry himself acknowledged that it had. His report stated: “Overall, his symptoms have increased over the past years.”⁴⁷ This observation was supported by other evidence. I note that on November 25, 2005, Mr. C was seen in the Urgent Health Clinic of the William Osler Health Centre where his “presenting problem” was described in the following terms:

Pt reported that he came to the Clinic because he has had difficulty getting on with his life and accepting things since being in 3 MVAs from March-April 2001 leaving him with chronic back, shoulder and neck pain. Symptoms reported by pt were social withdrawal; memories of the MVAs; hypervigilance in cars; difficulty tolerating crowds; sleep disturbance; fluctuating appetite; suicidal thoughts; anger; racing thoughts; boredom; panic attacks and episodes of high anxiety marked by shortness of breath and chest tightness. He described his motivation and interest level to vary and panic attacks to be less frequent/severe. He denied psychotic symptoms. Pt described his mood as “I feel down every day”. ⁴⁸

Based on the evidence before me, this was the first time Mr. C had been seen on an emergency basis for his psychological problems and it confirmed that his problems had become more acute than previously reported. This deterioration undermined Dr. Berry’s ability to assess Mr. C’s ability to return to his pre-accident job between October 2002 and October 2003.

Second, Dr. Berry’s opinion overlooked the fact that Mr. C returned to work twice after his 2001 accidents. As already noted, Mr. C did tell Dr. Berry about his post-accidents employment history in 2002 and 2003. Faced with this oversight, Dr. Berry attempted to change his opinion at the hearing by placing the adjective “continuous” ahead of the words “form of work”.⁴⁹ His opinion thus became that Mr. C “has been completely disabled for any continuous form of work” since his three accidents in 2001. Dr. Berry explained further: “What I am saying is that but for those two intervals, he has been completely disabled for work. But for those two intervals. During that time he is working as a courier, he is getting nerve blocks from Dr. Greenspoon and he feels temporarily better.”⁵⁰

In my view, the more Dr. Berry attempted to correct his oversight, the further his opinion strayed from both the law and the facts. As to the law, Mr. C was required to prove that he was substantially unable to perform the essential tasks of his pre-accident job after October 2002. Of course, had Mr. C proved that he tried to return to his pre-accident job but was unable to continue, that would have be taken into consideration as evidence that he was unable to do it. But Dr. Berry’s opinion does not assist Mr. C to meet the test of eligibility if it only denied his ability to do his pre-accident job as a “continuous form of work”. Neither the expression “continuous form of work” nor any similar language appears in the test of eligibility.

As to the facts, Dr. Berry noted in his own report that Dr. Greenspoon only gave injection treatments to Mr. C between December 2, 2003 and February 17, 2005,⁵¹ that is, well after the “two intervals” when Mr. C was working. In addition, while one of these “intervals” lasted approximately seven months, Mr. C agreed that the injection treatments only produced what Dr. Greenspoon called “transient relief”.

I therefore conclude that Dr. Berry’s opinion provides little support for Mr. C’s claim for IRBs during the 104-week period.

For these reasons, I reject Mr. C’s claim for IRBs after October 6, 2002 pursuant to section 4(1) of the Schedule. I do not, therefore, need to address the issue of his entitlement to IRBs under section 5(2)(b) of the Schedule. Mr. C also cannot be entitled to a special award to pursuant to section 282(10) of the Insurance Act.

EXPENSES:

In accordance with the procedure set out in the Dispute Resolution Practice Code, the parties will advise if they are unable to agree about how to resolve the issue of expenses.

June 27, 2008

David Leitch Arbitrator

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