Neutral Citation: 2009 ONFSCDRS 17

FSCO A06-002285

BETWEEN:

CAMILLUS XAVIER

Applicant

and

OLD REPUBLIC INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Minor errors on pgs. 2, 6 and Order corrected on February 13, 2009 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Jeffrey Rogers

Heard: November 18 and 20, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. David R. Neill, solicitor for Mr. Xavier Mr. Mark Stewart, solicitor for Old Republic Insurance Company

Issues:

The Applicant, Camillus Xavier, was injured in a motor vehicle accident on June 11, 2004.

He applied for and received statutory accident benefits from Old Republic Insurance Company (“Old Republic”), payable under the Schedule.¹ Old Republic terminated weekly income replacement benefits on June 10, 2006. Old Republic also denied Mr. Xavier’s claim for payment for his enrolment in a pain management program, as set out in a Treatment Plan dated March 31, 2006. The parties were unable to resolve their disputes through mediation, and

Mr. Xavier 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. Xavier entitled to receive a weekly income replacement benefit of $400, from June 11, 2006, to present and ongoing, pursuant to section 5 of the Schedule?
Is Mr. Xavier entitled to receive a medical benefit of $3,500 for treatment by Dr. Gary Lee, as recommended in his Treatment Plan dated March 31, 2006, pursuant to section 14 of the Schedule?
Is either party liable to pay the other’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Xavier entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mr. Xavier is entitled to receive a weekly income replacement benefit of $400, from June 11, 2006, to present and ongoing, pursuant to section 5 of the Schedule.
Mr. Xavier is not entitled to receive a medical benefit of $3,500 for treatment by Dr. Gary Lee, as recommended in his Treatment Plan dated March 31, 2006, pursuant to section 14 of the Schedule.
If the parties are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
Mr. Xavier is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

EVIDENCE AND ANALYSIS:

Introduction

Mr. Xavier was born in Sri Lanka in 1967. He immigrated to Canada in 1993. He returned to Sri Lanka in 1998 and got married there. After the marriage, the couple returned to Canada. They have two children, born in 2001 and 2003. Mr. Xavier found employment in a bakery about six months after immigrating to Canada. After working in that industry for a number of years he bought the bakery in which he was first employed. He ran the business for about two years, until it failed and he declared bankruptcy. He did not remain unemployed for long. He soon found a full-time job as a welder/assembler at Assinck Limited. He had worked there for about two years before the accident. On the weekends, he worked as a cleaner for Waterford Building Maintenance Inc.

On June 11, 2004 Mr. Xavier was struck by a vehicle while riding his bicycle at the intersection of Markham Rd. and McNicoll Ave., in Scarborough. He was taken by ambulance to the Scarborough Centenary Hospital where he was treated for a fractured right clavicle, prescribed pain killers and released. A follow-up visit on June 16, 2004 with Dr. Richard Kaminker, an orthopaedic surgeon, disclosed lumbar compression fractures at the L1, L4 and L5 levels. The fractures are now healed but Mr. Xavier says that he remains disabled by pain and the psychological sequelae caused by his injuries.

Mr. Xavier has not returned to work, except for two brief periods as general help in a grocery store and delivering newspapers. Old Republic paid income replacement benefits for 104 weeks after the accident, conceding that Mr. Xavier suffered a substantial inability to perform the essential tasks of his pre-accident employment. To be entitled to income replacement benefits beyond 104 weeks, Mr. Xavier must meet the more stringent test of complete inability to engage in any employment for which he is reasonably suited by education, training or experience, imposed by section 5 of the Schedule. Old Republic’s position is that Mr. Xavier does not meet the more stringent test.

Dr. Gary Lee submitted a Treatment Plan to Old Republic, dated March 31, 2006, requesting approval for Mr. Xavier’s enrolment in a multidisciplinary chronic pain program.² Relying on the opinions of Dr. Gary Challis, a psychologist, and Dr. Emile Ramlochan, a chiropractor, Old Republic refused to approve the program on the grounds that the proposed treatment is not reasonable and necessary, within the terms of section 14 of the Schedule.

Education, Training and Experience

Mr. Xavier has what he describes as a Grade 12 education. He completed his schooling under the Sri Lankan system, in which he did his “O” Levels in high school, but did not complete his “A” Levels. His first work experience in Sri Lanka was assisting on the family farm. His family was in the cigar production business. He testified that he assisted in production and also in delivery of products. Later, he worked in a factory that made rubber products. His evidence was that he was mainly involved in production of the rubber parts. He did moulding, assembly, cleaning, packing and distribution of the products. He was in that business for five or six years before coming to Canada.

When he came to Canada, he attended ESL classes for about six months. He said he had studied English in school, but he could not speak it well when he came to Canada. He agrees that his proficiency in spoken English improved over his time in Canada, but said that it has regressed since the accident, as a result of his isolation. The only test that measured his English proficiency showed him to be functionally illiterate in English.³

By going door to door looking for a job, he found employment as general help at Bun King Bakery, about six months after coming to Canada. He had no experience in the area. He was trained on the job. As he gained experience, he was given greater responsibility. He mixed dough in machines and baked bread. He described his job as physically demanding, requiring him to lift 25 kilogram bags of flour and about the same weight in bread. He had to stand or move about all day. He made about $7.00 per hour. After gaining experience at Bun King, he responded to a newspaper advertisement by Ace Bakery and was hired there. This job paid a bit better, but the work was the same. He started at $9.00 an hour and was making $13.00 an hour when he left six or seven years later. His evidence was that his job remained the same throughout, but his income increased because he was considered a reliable worker.

He left Ace Bakery when he bought the Bun King where he had been previously employed. His business lasted about two years. His evidence was that he did everything in the business, including banking, dealing with suppliers, production and delivery. He had two or three employees and took care of the relevant paper work. Someone else did his tax returns and bookkeeping.

After the business failed, his wife’s brother-in-law helped him get the job as a welder/assembler at Assinck Limited. His regular shift was 85 hours every two weeks. His evidence was that he also got about five or six hours a month of overtime. As it was when he entered the bakery business, he had no previous experience in the kind of work he did at Assinck. He was again trained on the job. He assembled components for large conveyor belts. A Worksite Analysis, conducted on Old Republic’s behalf on November 10, 2005⁴, found that the job required prolonged standing, continuous lifting of weights up to 50 pounds, occasional carrying of weights up to 50 pounds and bilateral dexterity. He started out at $12.00 per hour and was making $13.50 per hour at the time of the accident.

At the time of the accident, he also worked on the weekends as a cleaner for Waterford Building Maintenance Inc. He had done that job, usually for two full shifts on the weekends, since May 2003.⁵ His duties included mopping floors, cleaning washrooms, vacuuming, sweeping, cleaning windows and scrubbing showers. For this work he was paid $9.10 per hour. Mr. Xavier did not receive any certificates or other accreditation as a result of his on-the-job training and he has not received any training since the accident. He testified that he tried to take some further ESL classes, but quit because he could not tolerate the sitting and could not concentrate.

Post-Accident Treatment and Activities

As noted above, Mr. Xavier was taken by ambulance to Scarborough Centenary Hospital after the accident. He was treated there for a fractured right clavicle, prescribed pain killers and released with a referral to Dr. Kaminker, an orthopaedic surgeon. When he saw Dr. Kaminker a week later, it was determined that he had also suffered lumbar fractures at the L1, L4 and L5 levels. Dr. Kaminker referred him for physiotherapy at the Scarborough Physiotherapy and Rehabilitation Clinic and he attended there for nearly two years. He was also treated at a chronic pain clinic with laser treatments, acupuncture, massage and an exercise program for about 18 months after physiotherapy. In 2006 Dr. Kaminker referred him to Dr. Joel Lobo, an orthopaedic surgeon with expertise in shoulder reconstruction.

Mr. Xavier’s post-accident treatment was also followed by Dr. Yasho Tharmaratnam, his family doctor. Dr. Tharmaratnam referred him for assessment by Dr. Roy Raghunan, a psychologist, in January 2005. When his psychological symptoms did not resolve, Dr. Tharmaratnam also referred him to Dr. Mortimer Mamelak, a psychiatrist, in 2007. Mr. Xavier remains under the care of Dr. Raghunan and Dr. Mamelak. He continues to take prescribed pain killers and drugs for anxiety and depression that Dr. Mamelak prescribed.

Mr. Xavier has not returned to his pre-accident work. He testified that he has never felt fit to return to the heavy physical demands of his pre-accident job and that modified work was not available. His employer confirmed that information when a Worksite Assessment was done on Old Republic’s behalf.⁶ Mr. Xavier testified that in April 2008 he tried work as a newspaper delivery person. The job required him to lift bundles of papers and to pull a cart down hallways in buildings. He lasted only one or two days and quit because of increased pain, mostly in his back. In June 2008, he tried working as general help in an ethnic grocery store where his family shops. His job was mostly putting things on shelves which required a lot of bending and lifting. Again he lasted only a day or two. He found that he could not follow instructions and the lifting aggravated pain in his shoulder.

Although he has reported some improvement, Mr. Xavier has consistently reported debilitating shoulder and back pain since the accident. His evidence was that he still experiences continuous shoulder and back pain which is aggravated by activity. When he went to see Dr. Raghunan in January 2005 he reported fear when in close proximity to a vehicle, as a pedestrian. He said that he no longer rode his bicycle, which he had used as his principle means of transportation to work. He reported feelings of uselessness, guilt and shame at not being able to help around the house and support his family.⁷ The theme of uselessness, guilt and shame is repeated in Mr. Xavier’s subsequent visits with Dr. Raghunan and his interviews with all of the doctors who have treated or assessed him regarding his psychological condition. He confirmed that information in his testimony. He also testified that he no longer drives. He said that he tried driving two or three times but he was afraid, he could not sit comfortably and it was difficult to turn his head to see the mirrors and he felt unsteady. His wife now does the driving.

In her testimony, Jenita Anthonipillai, Mr. Xavier’s wife, confirmed his evidence of inactivity since the accident. She confirmed that he has complained of shoulder and back pain since the accident. She said that she tells him to do things around the house and he says that he cannot. She described him as happy before the accident, but now he is angry when anyone talks to him. He is not kind to the children. He pretends not to hear them when they ask him to do something. He gets angry with them. He does not help around the house, he does not help bathe the kids and he does not help with shopping. He does not like to go out. She has to force him. He did everything before the accident. She was not employed before the accident. She has now been forced to go out and work to support the family and then she has to come home and do everything. She came to tears as she described her husband’s decline since the accident.

Expert Evidence for Mr. Xavier— Employment

The parties filed a joint brief containing the reports of the experts upon whose opinions they rely. The only expert to give oral testimony was Dr. Neville Doxey, a psychologist who examined Mr. Xavier at his lawyer’s request. Mr. Xavier relies on Dr. Doxey’s reports and testimony and the reports of Dr. Kaminker, Dr. Lobo, Dr. Raghunan and Dr. Lee.

Dr. Kaminker, the orthopaedic surgeon who treated Mr. Xavier after his discharge from Scarborough Centenary Hospital, authored reports dated November 15, 2005, September 11, 2006 and July 4, 2008.⁸ In his first report, he notes that he first saw Mr. Xavier on June 16, 2004 and has seen him for six follow-up visits. He states that the fractures have healed, but that Mr. Xavier reported ongoing shoulder and lumbar pain, aggravated by walking, repetitive bending, lifting or maintaining sustained postures. Dr. Kaminker further states that he investigated the ongoing complaints of pain in the shoulder and an MRI had revealed a possible impingement of the supraspinatus tendon. Dr. Kaminker notes that, although the lumbar fractures are healed, there is “some mild anterior wedging left through the L1 vertebral body.”⁹ His prognosis for full symptom recovery was guarded, given the fact that Mr. Xavier had suffered multiple fractures in his lumbar spine. He recommended no further treatment for the back, except pain killers, when the pain was at its worst. He referred Mr. Xavier to Dr. Lobo, an expert in upper extremity reconstruction, for his opinion on treatment for the shoulder.

Dr. Lobo authored a report dated January 3, 2006.¹⁰ He noted Mr. Xavier’s complaints of shoulder pain, exacerbated by lifting and overhead motion. Upon examination of Mr. Xavier and the report from the MRI that Dr. Kaminker had commissioned, his diagnosis was “myofascial pain with secondary rotator cuff impingement and posttraumatic AC joint arthrosis.”¹¹ He recommended that Mr. Xavier avoid lifting more than 10 lbs. except occasionally, avoid repetitive shoulder motion and avoid overhead motion. He sent Mr. Xavier for an injection into the AC joint, the effectiveness of which would determine whether surgery should be considered.

Dr. Kaminker’s report of September 11, 2006¹² indicates that Dr. Lobo concluded that surgery was not appropriate. He recommended management at a pain clinic and the activity modification noted above. Dr. Kaminker’s opinion on September 11, 2006 was that, given the passage of time since the accident and Mr. Xavier’s ongoing complaints, supported by the objective evidence of ongoing impairment disclosed by the MRI and X-rays, Mr. Xavier’s impairment should be considered permanent. He noted that Mr. Xavier’s described lumbar disability was “not uncommon with respect to the natural history of lumbar spine fractures due to the associated injuries that occur to the soft tissues, surrounding disc and load transfer to the rest of the spinal column.”¹³ He further noted that “[G]iven the fact that it has been two years since the motor vehicle accident, it is unlikely that any further rehabilitative modalities or surgical treatments will alter his ongoing symptoms and complaints of pain and disability.”

Mr. Xavier’s complaints remained unchanged when he saw Dr. Kaminker in July 2008 and Dr. Kaminker’s opinion remained unchanged. Mr. Xavier’s use of analgesics had apparently increased since he last saw Dr. Kaminker. He now reported using Percocet, Gabapentin, Citalopram and Temazepam. He had previously only reported using Tylenol. Dr. Kaminker took new X-rays “which revealed a kyophotic deformity at L1 with approximately 10 degrees of kyphosis and narrowing of the T12-L1 disc space.”¹⁴ He concluded as follows: “[His] findings on history, clinical examination, and radiologic imaging provide a reasonable explanation of disability with respect to his previous occupational duties and difficulty performing activities that require repetitive bending, heavier lifting, and maintaining sustained postures.”¹⁵

As noted above, when Mr. Xavier saw Dr. Raghunan in January 2005, his reported symptoms included fear when in close proximity to a vehicle as a pedestrian, no longer being able to ride his bicycle or drive, feelings of uselessness, guilt, and shame at not being able to help around the house and support his family.¹⁶ Dr. Raghunan reports that he administered the following battery of psychological tests: Beck Anxiety Inventory (BAI), Beck Depression Inventory (BDI-II), Personality Assessment Inventory (PAI) and Multidimensional Pain Inventory (MPI).

The PAI and the MPI contain questions designed to test whether the patient is providing valid responses. Dr. Raghunan concluded that the responses were valid. He reports that “[T]here were no bizarre response patterns to the test items, suggesting that his responses were consistent, appropriate and that he did not attempt to distort his condition.”¹⁷

The BAI measures the severity of self-reported anxiety. Dr. Raghunan reports that Mr. Xavier’s score was within the severe range. The BDI-II measures the severity of self-reported depression. Mr. Xavier’s scores were also within the severe range. Dr. Raghunan reports that Mr. Xavier’s performance on the PAI revealed clinical elevations in depression, anxiety and somatic complaints and his performance on the MPI “suggested that his primary profile is ‘Dysfunctional.’ His test data also suggested that pain renders him ‘Interpersonally Distressed’, and he is also shown to have difficulty in coping with the traumatic experiences, as he is a ‘Non Adaptive Coper.’”¹⁸ Dr. Raghunan’s diagnosis was adjustment disorder, pain disorder associated with both psychological factors and a general medical condition, phobic reaction towards riding a bicycle, malaise and fatigue and chronic post-traumatic headache. He recommended 12 psychological treatment sessions with the goal of returning Mr. Xavier to his pre-accident level of function.

In his further report of July 13, 2006¹⁹, Dr. Raghunan indicates that Mr. Xavier had been provided with the 12 treatment sessions and several further sessions, from which he benefitted. Mr. Xavier told him that, although he continued to feel depressed, stressed and frightened, some days were better than others. Dr. Raghunan noted that Mr. Xavier had been recently assessed by Dr. Douglas Saunders who had diagnosed “Adjustment Disorder with Mixed Anxiety and Depressed Mood”²⁰ and that his family doctor had prescribed an antidepressant and an analgesic.

Dr. Raghunan reports that Mr. Xavier had made some progress, but results were not as good as anticipated and his treatment plan had expired. He had a better attitude towards managing his pain but still experienced headaches, and pain in his shoulder and back. He still was not back to riding his bicycle and reported cognitive inefficiency, affecting his ability to perform routine and challenging activities, along with his previously recorded symptoms.

Dr. Raghunan administered another battery of psychological tests that included the BAI and the BDI-II and also the following new tests: Posttraumatic Stress Diagnostic Scale (PDS), Pain Patient Profile (P³) and Trauma Symptom Inventory (TSI). Like the PAI and the MPI that Dr. Raghunan had earlier administered, the TSI and the P³ also contain questions designed to test whether the patient is providing valid responses. Dr. Raghunan again concluded that Mr. Xavier’s answers were valid.

Dr. Raghunan reports a slight decrease (from 27 to 25) in Mr. Xavier’s score on the BAI, which moved his result from the severe range to the moderate range. There was a slight increase (from 33 to 35) on his score on the BDI-II, keeping him in the severe range. On the PDS, designed to elicit responses to aid in the diagnosis of posttraumatic stress disorder, Mr. Xavier scored in the severe range. His scores on the TSI were above average and on the P³ they were clinically elevated.

Dr. Raghunan’s diagnosis was posttraumatic stress disorder, major depressive episode, cycling phobia, chronic pain, malaise and fatigue and chronic posttraumatic headache. He opined that Mr. Xavier would experience difficulty performing his pre-accident jobs because of their requirement of, among other things, cognitive efficiency, refined dexterity, strength and endurance. He indicated in his current emotional state, and considering the psychotropic medication and analgesics he consumed, Mr. Xavier would pose a risk to himself and others if employed. He recommended 16 further treatment sessions, with reassessment at the end of treatment.

As noted above, Mr. Xavier was examined and assessed by Dr. Doxey at his counsel’s request. The assessments took place on August 3, 2007 and September 8, 2008. Dr. Philip Miller, another psychologist, also participated in the first assessment. Dr. Doxey and Dr. Miller authored a report dated October 18, 2007²¹ and Dr. Doxey authored a further report, dated September 8, 2008.²² The first report notes that the purpose of examining Mr. Xavier was to “address the implications of his accident, especially with respect to his general employability.”

Dr. Doxey is a psychologist with extensive experience in assessing patients from a vocational perspective. His experience includes 12 years in various capacities with the Ontario Workers’ Compensation Board and the Workplace Safety and Insurance Board, and eight years as Psychological Consultant to Prudential Insurance Company and Sun Life of Canada. In that capacity, he provided advice to claims and rehabilitation staff, regarding long term disability claims. Since 1979 he has practiced under the name of Dr. N.C.S Doxey and Associates. His curriculum vitae indicates that his practice includes treatment and conducting assessments and that his “clients include law firms, insurance companies, governmental agencies, hospitals, rehabilitation firms, corporations, and private citizens.”²³ He was qualified on consent, as an expert witness in the area of vocational psychology.

The history that Dr. Doxey and Dr. Miller recorded is generally consistent with what was earlier reported, except they indicate that Mr. Xavier said he lost consciousness and the he was a pedestrian. The reports immediately after the accident do not record a loss of consciousness and they say that Mr. Xavier was riding his bicycle when he was struck. There is no significant divergence between the general symptoms and restrictions Dr. Doxey and Dr. Miller recorded and those that were previously reported.

Dr. Doxey and Dr. Miller administered some of the tests that Dr. Raghunan used: the BDI-II, the BAI, the TSI and the P³. They also used some additional tests: General Abilities Measure for Adults (GAMA), Weschler Abbreviated Scale of Intelligence (WASI), Wide Range Achievement Test-Revision 4 (WRAT-4), Self Directed Search (SDS), Nonreading Aptitude Battery (NATB), Purdue Pegboard and Millon Clinical Multiaxial Inventory-III (MCMI-III).

The GAMA tests intelligence. Mr. Xavier’s score was in the borderline range, within the 6th percentile for his age. The low score was attributed to the fact that Mr. Xavier completed few items on this timed test. His slowness was attributed to pain and psychological factors. He scored in the 14th percentile on the WASI, which also tests intelligence. On the WRAT-4 which tests functional academic abilities, Mr. Xavier’s scores showed him to be functionally illiterate in English, with numerical skills commensurate with his educational background. On the Purdue Pegboard Test which measures manual dexterity Mr. Xavier’s scores showed him to have either significantly depressed or moderately depressed ability in all measured aspects.

Dr. Doxey and Dr. Miller report that the psychological tests they administered produced valid scores and showed Mr. Xavier to be severely depressed and suffering from a moderate level of anxiety. They diagnosed Pain Disorder Associated with Both Psychological Factors and a General Medical Condition, Chronic. They wrote the following: “[T]his diagnosis implies that his pain, and the impairment that results therefrom, are of mixed physical and psychogenic origin. While organic factors have been identified as playing a major role in the perpetuation of his pain…the severity, exacerbation, and maintenance of his pain are also believed to be significantly influenced by psycho-emotional factors. This disorder, it should be emphasized, is in no way synonymous with conscious symptom magnification. It is a very real disorder, associated with genuine suffering and significant disablement.”²⁴ Dr. Doxey and Dr. Miller arrived at a diagnosis similar to Dr. Raghunan. They diagnosed Major Depressive Disorder and Features of Posttraumatic Stress Disorder.

Applying their test scores to the minimum qualification data for the 36,000 occupations found in the National Occupational Classification, Dr. Doxey and Dr. Miller concluded that there was no objective evidence that Mr. Xavier was functioning at a level compatible with employment in any capacity. They wrote the following: “we find it hard to believe that this gentleman, who has accident related limitations with respect to weight-bearing, lifting and repetitive forward elevation of the right arm, is functionally illiterate in English, does not possess an Ontario high school education, and has only worked in laboring [sic] occupations all his life, and whose ability to sustain attention is undermined by depression and pain, is employable in any capacity at this point. He produced results…incompatible with any employment on tests critical to the issue of employability.”²⁵ They suggested continued psychological intervention and treatment at a pain management clinic but indicated that the prognosis was not good, due to the passage of time since the accident.

Dr. Doxey testified that, except for complaints of more frequent headaches, there was little change in Mr. Xavier’s condition when he saw him again in September 2008. He reports that he interviewed Mr. Xavier again and repeated the earlier testing, except for those that measured academic skill, over a period of about six hours.²⁶ He reports that Mr. Xavier’s wife had gone out to work but Mr. Xavier was sending the children to daycare because of his difficulties in taking care of them. He notes that Mr. Xavier was still seeing Dr. Raghunan, but only once a month, due to lack of funding. He was also now seeing Dr. Mamelak once every two months. He continued to be on prescribed medication for pain, depression and anxiety.

Dr. Doxey testified that the results of the tests were remarkably similar to the earlier results. His diagnosis was “Pain Disorder Associated With Both Psychological Factors and a General Medical Condition, Chronic, an Adjustment Disorder With Mixed Anxiety and Depressed Mood, Chronic, as well as with PTDS and phobic symptoms at a sub-clinical level.”²⁷ He testified that the test results placed Mr. Xavier on the borderline of his earlier diagnosis of Major Depressive Disorder and he chose Adjustment Disorder as a conservative diagnosis. His opinion on employability remained unchanged. He testified that such a conclusion was not unusual with patients suffering from chronic pain.

In his report, Dr. Doxey laments the reduction in Mr. Xavier’s access to psychological counselling and the fact that he had not been enrolled in a pain management program. He suggests that Mr. Xavier’s ongoing impairment was therefore predictable.²⁸ He writes: “I believe that he continues to require both psychological and psychiatric treatment as well as referral to a pain management program as I suspect that this represents his only realistic hope of recovering sufficiently to be able to resume a level of functioning compatible with gainful employment. Unfortunately, given that further time has elapsed and his conditions are now even more chronic, the prognosis can only be considered very guarded.”²⁹ His evidence was that he has not reviewed the treatment plan in dispute in this arbitration.

Dr. Doxey testified that he was not surprised at the outcome, based on Mr. Xavier’s history. Given the work ethic he had shown, the injuries from the accident had taken away much what gave meaning to his life. Shame at not working and being able to contribute to his household were a big factor in his psychological condition. It was not surprising that a person who had displayed such industriousness would feel his loss so severely.

In cross-examination, Dr. Doxey agreed that Mr. Xavier’s responses on the MCMI-III test indicated that he tended to exaggerate his emotional and personal problems. He agreed that the results could be seen as reflective as malingering. Dr. Doxey interpreted the responses as “‘a cry for help’ from someone who is experiencing an especially distressing degree of emotional turmoil rather than an attempt on Mr. Xavier’s part to deliberately exaggerate or mislead.”³⁰ His evidence was that such behaviour is not an uncommon feature of a patient suffering from chronic pain and his interpretation was in keeping with the literature on the use of this test.

Dr. Doxey was challenged in cross-examination on his use of inconclusive language such as “may”, “indicates” or “suggestive”, in describing the results of several tests. He explained that such language was dictated by his method of arriving at a diagnosis. He does not rely on a single test. He requires consistent results over several tests before accepting a result. Therefore, while he reports that the results of a single test “may” suggest a diagnosis, the cumulative effect of that suggestion over several tests allows him to arrive at a conclusive diagnosis.

Dr. Doxey was also challenged on his decision to communicate in English, directly with Mr. Xavier, a person he found to be functionally illiterate in English, rather than use the available Tamil interpreter. He explained that literacy refers to Mr. Xavier’s ability to read and write English, not his proficiency in speaking. Although he was aware of limitations in Mr. Xavier’s spoken English, he believed that his communication would be more accurate if he used simple language and got his information directly, rather than through the filter of an interpreter. He testified that he has a great deal of experience in using that technique and that his research indicates that interpreters “bring more noise into the system than is helpful.” His practice in situations where there is some ability to communicate directly is to use the interpreter only as back-up. That is what he did here.

Expert Evidence for Old Republic—Employment

Dr. R.H.N. Fielden, an orthopaedic surgeon and Dr. Douglas Saunders, a psychologist, conducted the first assessments for Old Republic on October 4, 2005. They authored reports dated October 11, 2005³¹ and October 19, 2005.³² Dr. Fielden concluded that Mr. Xavier was suffering from no residual impairment as a result of the accident and could return to all pre-accident activities, including work. Mr. Xavier told Dr. Fielden that he continued to experience shoulder and back pain. Dr. Fielden was aware of the treatment Mr. Xavier was receiving from Dr. Raghunan. Dr. Fielden’s observations on physical examination include restricted range of shoulder and lumbar motion. His report does not contain an explanation of how he arrived at his opinion.

Dr. Saunders conducted tests similar to those that Dr. Raghunan and Dr. Doxey had conducted and made a similar diagnosis. He diagnosed Mr. Xavier as suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood. He concluded that this psychological impairment may disable Mr. Xavier from “performing at least some aspects of his pre motor vehicle accident employment duties, especially those requiring extended periods of attention and concentration.”³³ He noted that this conclusion was based on Mr. Xavier’s report of his pre-accident duties. He also noted that his opinion on disability by psychological impairment was independent of any pain Mr. Xavier might be experiencing and opined that Mr. Xavier might be at risk of further psychological harm, should he return to his pre-accident employment, as he described it. After he gave this opinion, Old Republic asked Dr. Saunders to review Dr. Fielden’s opinion. He informed Old Republic that his opinion was not “affected or altered” by Dr. Fielden’s conclusions.

Old Republic then commissioned a Worksite Assessment³⁴ and sent it, along with a Functional Abilities Evaluation it had received from Scarborough Physiotherapy and Rehabilitation Centre, to Dr. Saunders for his review. On November 28, 2005, Dr. Saunders reported that the Worksite Assessment confirmed Mr. Xavier’s description of his job demands and his opinion remained unchanged.

Dr. Saunders assessed Mr. Xavier again on February 27, 2006 and authored a report dated March 16, 2006.³⁵ He again conducted the battery of psychological tests. His diagnosis was unchanged. He noted that “although there has been improvement in his status, he is still experiencing significant elevations in psychological symptoms, mainly due to the stressor of persistent physical pain arising from the impact of the motor vehicle accident.”³⁶ However, Dr. Saunders’ conclusions after this examination were as follows: “[T]he results of my evaluation in conjunction with the recent Functional Evaluation show that he is capable of managing moderate to medium level job demands with no noticeable pain aggravation” and “if pain were not a feature, Mr. Xavier’s psychological impairment has improved sufficiently that the applicant would now be able to perform most aspects of his pre-accident employment duties.”³⁷

The Functional Abilities Evaluation that influenced Dr. Saunders’ conclusions was conducted by Dr. Ramlochan, a chiropractor. His curriculum vitae indicates that he “completed post-graduate professional training through the Virginia Commonwealth University in the sub-specialty of Functional Evaluations” and that his practice includes performing Insurer Assessments.³⁸ He assessed Mr. Xavier on February 15, 2006 and authored a report of the same date.³⁹

Dr. Ramlochan put Mr. Xavier through a series of exercises designed to approximate the demands of his pre-accident jobs. He concluded that Mr. Xavier does not suffer any accident related impairment that prevents him from engaging in the essential tasks of his pre-accident employment. The charts summarizing the results of Dr. Ramlochan’s testing show that Mr. Xavier suffers no strength or dexterity deficits affecting his ability to return to work.⁴⁰ Dr. Ramlochan notes that his conclusions are “based upon the evaluators [sic] clinical judgment based upon the existence of disabling pathology and sincerity of the claimant’s efforts as measured throughout the evaluation.”⁴¹ Dr. Ramlochan found no deficits upon his physical examination of Mr. Xavier. He was aware of the fractures that Mr. Xavier suffered in the accident and notes that, due to the nature of the injuries, he will defer prognosis to the appropriate orthopaedic specialist.⁴² He did not review any of the X-rays or other imaging.

Mr. Xavier did not successfully complete all of the exercises that Dr. Ramlochan administered. For instance, Mr. Xavier did not score well on the test of his dynamic lifting ability and did not complete the testing because of complaints of pain. However, Dr. Ramlochan deemed him functional based on his opinion that failure was a result of sub-maximal effort. He reached that opinion largely by measuring Mr. Xavier’s heart rate and comparing it to “expected” rates.

The next assessment for Old Republic was done by Dr. Challis, a psychologist. He assessed Mr. Xavier on May 12, 2006 in order to render an opinion on whether the multidisciplinary treatment proposed by Dr. Lee, also in dispute in this arbitration, was reasonable and necessary. He authored a report, dated May 17, 2006.⁴³ The results of Dr. Challis’ psychological testing led him to a diagnosis similar to those of Dr. Raghunan, Dr. Doxey and Dr. Saunders. He diagnosed “Pain Disorder associated with medical and psychological factors—anxiety, chronic.”⁴⁴ However, he concluded that the proposed treatment was not reasonable and necessary because “Mr. Xavier’s continuing anxiety and pain-focused behaviour should no longer be framed within the context of a direct result of the motor vehicle accident.” He wrote “while Mr. Xavier’s anxiety/worry over his current circumstances may well reflect actual levels of upset, I do not feel that they are being maintained by factors directly associated with the events of the accident, nor are they present to an extent that would be considered psychologically disabling.”⁴⁵ Dr. Challis did not rule out the need for therapy. He also wrote that “while Mr. Xavier would likely benefit from therapeutic intervention to address his focus on his perceived disabling features, I do not feel that this focus is due to the MVA in question.”⁴⁶

In March 2008, Mr. Xavier was again assessed for Old Republic in response to his claim that he suffered a catastrophic impairment as a result of the accident. The assessment was conducted by Dr. Geoffrey French, an orthopaedic surgeon, Dr. Konstantine Zakzanis, a psychologist and Mr. Jeff Ford, an occupational therapist.

Dr. Zakzanis reported that the quality of the data that he obtained upon conducting testing did not allow him, “with a reasonable degree of psychological certainty, to make a formal psychological diagnosis.” Dr. French concluded that Mr. Xavier suffered a 37% whole person impairment as a result of accident related injuries to his right shoulder and back.⁴⁷ Mr. Ford conducted tests similar to those Dr. Ramlochan had earlier done and, for reasons similar to Dr. Ramlochan’s, he concluded that Mr. Xavier was putting forth a sub-maximal effort when he did not meet testing standards and opined that he did not suffer a substantial inability to engage in all pre-accident activities.

Expert Evidence—Treatment

The only evidence for Mr. Xavier that directly addresses the disputed treatment plan is a report dated December 5, 2005, authored by Dr. Lee, who recommended the treatment.⁴⁸ Dr. Lee opines as follows:

I believe he would benefit from a multidisciplinary program for chronic injuries with the goal of managing pain using LEPT: functional restoration through task specific, work specific and ADL specific exercises as well as overall conditioning.

Dr. Lee also notes as follows:

Prior to attending our clinic, Mr. Xavier received 4 months of multidisciplinary treatment including, chiropractic care, physiotherapy, massage and exercise at another clinic with moderate improvements. He reached a plateau in his recovery and continues to have moderate to high levels of pain…

Old Republic sent the treatment plan to Dr. Ramlochan who had earlier conducted a Functional Capacity Evaluation, for his review and opinion. He concluded, again without examination of any of the available imaging, that Mr. Xavier did not suffer an ongoing impairment and that the proposed treatment was not reasonable and necessary. As noted above, Dr. Challis also reviewed the plan for Old Republic and concluded that that the pain disorder that Mr. Xavier was experiencing was not directly caused by the accident.

Analysis—IRBs

To be entitled to the claimed IRBs Mr. Xavier must show that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. The analysis requires answering two broad questions:

What is suitable employment for Mr. Xavier, based on his education, training or experience?
Does he suffer a complete inability to engage in that employment?

Suitable Employment

Mr. Xavier’s evidence about his education, training and experience was not seriously challenged in cross-examination. There was nothing in the manner in which the evidence was given or in the content of the evidence to suggest that it should not be believed. No significant inconsistency was revealed and, in the areas in which she had knowledge, his wife corroborated Mr. Xavier’s account. I accept Mr. Xavier’s evidence in this regard.

I find that Mr. Xavier has approximately a grade 12 education which he received in Sri Lanka. I find that, although he has some proficiency in spoken English, he is functionally illiterate in English. I agree that literacy is a measure of skill in reading and writing and not of the ability to speak. I accept the results of the only test of literacy, conducted by Dr. Doxey, which showed Mr. Xavier to be functionally illiterate in English. This finding is also supported by the fact that Mr. Xavier thought it necessary to enrol in ESL courses when he came to Canada and again tried to pursue those courses after the accident.

I find that Mr. Xavier has been primarily involved in jobs that required prolonged standing, repetitive lifting of moderate loads and occasional heavy lifting, repetitive bending and twisting and sustained attention and concentration. I find that his education, training and experience, along with his illiteracy in English, limit his suitability to only those jobs that require the above abilities.

Complete Inability

Old Republic submitted that the issue of whether Mr. Xavier suffers a complete inability to engage in suitable employment turns largely on his credibility and that I should not accept his evidence on his limitations that affect this determination. The attack on credibility is based on alleged inconsistencies in his evidence, his alleged lack of sincere effort on certain tests, and his alleged lack of diligence in finding work since the accident. I agree that credibility is critical to the determination of this issue. I find Mr. Xavier to be a credible witness and I accept his evidence.

I will address the alleged lack of sincerity of effort when I assess the expert evidence that made those findings. There are two areas of alleged inconsistency. First, Mr. Xavier testified that he hit his head in the accident and apparently gave that history to some assessors, but the hospital records do not confirm a complaint of a blow to the head. Second, Mr. Xavier testified and reported at the time of the accident that he was riding his bicycle when the accident happened, but apparently reported to some assessors that he was a pedestrian, pushing his bicycle. I find these discrepancies to be of no consequence. Mr. Xavier does not allege a disability as a result of hitting his head and no diagnosis turns on that history. He has nothing to gain from fabricating the allegation. Similarly, nothing turns on whether Mr. Xavier was riding his bicycle, or pushing it. I attribute the discrepancies to either imperfect memory or inaccurate recording or reporting of what Mr. Xavier said.

Mr. Xavier’s history of employment shows him to be highly motivated to work. He came to a new country, where he was not proficient in the language and found a job in a field in which he had no experience by going door to door. He was given progressive responsibility at Bun King and again showed industry and ambition when he secured the job at Ace Bakery, for a higher wage. He became a trusted employee at Ace, reflected in his increasing hourly wages. His industry and ambition again surfaced in his purchase of the Bun King business. When that enterprise failed, he was not idle for long. As he explained, he was confident that despite the set-back, he had the energy to be successful in another job. He quickly moved on to his pre-accident job at Assinck. He was again able to adapt to a field in which he had no experience. When the accident happened he was working full-time at Assinck, accepting available overtime, and also putting in two full shifts for Waterford Building Maintenance Inc. on the weekends. He was not picky. He was making $13.50 an hour at Assinck, but only $9.10 an hour at Waterford.

There is no evidence to suggest that Mr. Xavier has worked since the accident. There is no evidence to suggest that Mr. Xavier has not withdrawn from pre-accident social activity and restricted his interaction with his children. I accept the evidence in this regard. The evidence is that industry is valued in Mr. Xavier’s community and that he has been encouraged to return to work and feels ashamed at not being able to do so. Given his work history, I find it unlikely that he gave up work, social life and family relationships, presumably on the chance of receiving compensation as a result of the accident.

There is ample expert evidence on both sides of the debate that Mr. Xavier suffers ongoing physical impairments as a result of the accident. The fractures of his clavicle and spine that he suffered were serious physical injuries. Dr. Kaminker, Dr. Lobo, and Dr. French all found ongoing impairment, supported by the objective evidence of the MRI and the X-rays they reviewed. I accept their opinion. I find that, as Dr. Kaminker noted in his report of September 11, 2006, Mr. Xavier’s described lumbar disability is “not uncommon with respect to the natural history of lumbar spine fractures due to the associated injuries that occur to the soft tissues, surrounding disc and load transfer to the rest of the spinal column.” I further accept Dr. Kaminker’s prognosis when he said that: “[G]iven the fact that it has been two years since the motor vehicle accident, it is unlikely that any further rehabilitative modalities or surgical treatments will alter his ongoing symptoms and complaints of pain and disability.”⁴⁹

I do not accept Dr. Fielden’s conclusion in his report of October 11, 2005⁵⁰ that Mr. Xavier suffered no ongoing physical impairment. The report contains no explanation of how he arrived at this conclusion and his opinion is at odds with the findings of his own examination which included restricted range of shoulder and lumbar motion.

I also do not accept Dr. Ramlochan’s similar conclusions. Dr. Ramlochan is not an orthopaedic specialist and specifically deferred expertise in assessing Mr. Xavier’s injuries to the appropriate specialist in that field. He indicated that his opinion is based in part on the “existence of disabling pathology.” He did not review the available imaging and did not incorporate the available orthopaedic opinions into his assessment. He was therefore not in a good position to make conclusions on the extent of Mr. Xavier’s ongoing impairment. There is also no indication that Dr. Ramlochan has any expertise on how chronic pain, Mr. Xavier’s psychological conditions and the numerous medications he was taking, might affect his ability to complete the tests administered.

This lack of information and expertise on Mr. Xavier’s injuries devalues Dr. Ramlochan’s opinion on the sincerity of Mr. Xavier’s efforts on testing. Had Dr. Ramlochan been aware of the objective evidence of Mr. Xavier’s ongoing impairment, he might have attributed Mr. Xavier’s inability to complete the required tests to “disabling pathology”, rather than sub-maximal effort.

I find that Dr. Ramlochan’s observation that Mr. Xavier did not achieve target heart rates when unable to complete tests does not enhance his opinion that Mr. Xavier was not trying. I would not expect a person who is unable to give maximum effort because of pain or disability to achieve the heart rate of a person able to give maximum effort. Applying Dr. Ramlochan’s logic, one would absurdly conclude that a person with two broken arms, who does not reach the expected heart rate while unable to complete the prescribed number of push-ups, is simply not trying hard enough. Because he applied Dr. Ramlochan’s logic, I also reject Mr. Ford’s conclusion that Mr. Xavier did not give maximum effort when he was unable to complete the tests Mr. Ford later conducted.

I give no weight to Dr. Zakzanis’ inability to give an opinion on Mr. Xavier’s psychological condition. There is also ample expert opinion on both sides of the debate that Mr. Xavier suffers from psychological conditions caused by the accident. Dr. Raghunan, Dr. Doxey, Dr. Miller, Dr. Saunders and Dr. Challis all arrived at similar diagnoses, with their origin in pain. Dr. Challis, who diagnosed Mr. Xavier to be suffering from Pain Disorder, applied the wrong causation test when he opined that “Mr. Xavier’s continuing anxiety and pain-focused behaviour should no longer be framed within the context of a direct result of the motor vehicle accident.”

The correct test is whether the accident significantly or materially contributed to the development or continuation of the disability.⁵¹ Had he applied the correct test Dr. Challis’ opinion might well have been different because he suggests no other cause of Mr. Xavier’s psychological illness. Therefore, although I accept Dr. Challis’ diagnosis because of its consistency with the opinions of the other mental health experts who assessed Mr. Xavier, I do not accept his opinion on causation.

Dr. Saunders changed his opinion on disability, but that decision was not based on the results of his own examination. While his test results showed improvement on the HSQ test, the results of the PAI were unchanged. On the HDI Mr. Xavier now met clinical significance criteria for seven of nine primary symptoms of major depression, when he only met four earlier. Dr. Saunders’ diagnosis remained unchanged and he had earlier reported that Mr. Xavier was disabled from his pre-accident job by psychological factors, independent of pain. It is puzzling that Dr. Saunders’ reversed his opinion, based on the results of Dr. Ramlochan’s assessment, when he had earlier refused to do so, when told that Dr. Fielden had found no impairment. Dr. Saunders’ reversal is surprising, given the fact that Dr. Ramlochan’s opinion is based on concluding that Mr. Xavier was insincere in his presentation and Dr. Saunders’ own tests produced valid results. I have not accepted Dr. Ramlochan’s opinion. I find that it was not a reasonable basis for Dr. Saunders’ change of opinion.

I do not accept the submission that the cautious language that Dr. Doxey used on arriving at his diagnosis devalues his opinion. I accept his explanation that he used cautious language when describing the results of a single test because he does not make a firm diagnosis unless there is consistency over a series of tests. His cautious approach gives his opinion greater value because it demonstrates that he was not prepared to make speculative conclusions. In any event Dr. Doxey’s diagnosis cannot be assailed when one considers that it was almost identical to Dr. Saunders’. I also do not accept the submission that Dr. Doxey’s opinion is tainted by his decision to communicate with Mr. Xavier in English. The history he obtained is not significantly different from the history upon which the other opinions are based.

Finally, find that Mr. Xavier’s limited attempts to return to work are not a reflection of a lack of inclination to do so. Rather, they reinforce his inability to do so. As noted above, Mr. Xavier’s history is one of industry and hard work. As Dr. Doxey noted, it is not surprising that a person with that history would feel the loss of his ability to work so severely. Mr. Xavier’s diminution of the initiative he displayed throughout his work history is explained by the opinions and diagnoses of all of the mental health professions who found him to be suffering from anxiety and depression, rooted in pain.

Based upon Mr. Xavier’s evidence and the expert opinions I have accepted, I find that Mr. Xavier suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. I adopt the language of Dr. Doxey, who was the expert best qualified to assess the effects of Mr. Xavier’s impairments on his vocational potential. I find it “hard to believe that this gentleman, who has accident related limitations with respect to weight-bearing, lifting and repetitive forward elevation of the right arm, is functionally illiterate in English, does not possess an Ontario high school education, and has only worked in laboring [sic] occupations all his life, and whose ability to sustain attention is undermined by depression and pain, is employable in any capacity at this point.”

For these reasons, I find that Mr. Xavier is entitled to the claimed IRBs.

Analysis—Treatment

To be entitled to the disputed treatment Mr. Xavier must show that it was reasonable and necessary. As noted above, the only evidence Mr. Xavier presented, directly addressing that issue, was the opinion of Dr. Lee suggesting that Mr. Xavier would benefit from the proposed multidisciplinary program for chronic injuries. However, Dr. Lee also notes that Mr. Xavier had already been involved in a 4-month multidisciplinary program and had reached a plateau in his recovery. I have no evidence on how the proposed program is different from the one in which Mr. Xavier had already participated. I have no evidence to suggest that the proposed program would succeed, when the earlier one had apparently failed. I appreciate that Dr. Doxey and Mr. Xavier’s treating doctors also opined at various times that Mr. Xavier would benefit from a multidisciplinary program. However, none of them addressed the issue I have raised.

I find that Mr. Xavier has not proven that the proposed treatment is reasonable and necessary and conclude that he is not entitled to payment for the disputed treatment plan.

EXPENSES:

The parties made no submissions on expenses. If the parties are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

February 6, 2009

Jeffrey Rogers Arbitrator

Date

Financial Services Commission of Ontario