Financial Services Commission of Ontario

Neutral Citation: 2010 ONFSCDRS 90 FSCO A09-003154

BETWEEN:

PHILLIP CARR Applicant

and

TD GENERAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Judith Killoran Heard: April 26, 27, 28 and 29, 2010 at the Financial Services Commission of Ontario Appearances: Alex Voudouris for Mr. Carr Nestor E. Kostyniuk for TD General Insurance Company

Issues:

The Applicant, Phillip Carr, was injured in a motor vehicle accident on January 30, 2008. He applied for and received statutory accident benefits from TD General Insurance Company (“TD General”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Carr 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:

1. Is Mr. Carr entitled to receive a weekly income replacement benefit at the rate of $326.45 from May 20, 2009 to date and ongoing, pursuant to sections 4 and 5 of the Schedule?

2. Is Mr. Carr entitled to receive medical benefits in the amounts of $2,145.62 for treatment at Physiotherapy Fix related to a treatment plan dated August 11, 2009 and $3,944.87 for psychological treatment related to a treatment plan dated October 6, 2009, pursuant to section 14 of the Schedule?

3. Is TD General liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Carr?

4. Is Mr. Carr entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

1. Mr. Carr is entitled to receive a weekly income replacement benefit at the rate of $326.45 from May 20, 2009 to date and ongoing, pursuant to sections 4 and 5 of the Schedule.

2. Mr. Carr is entitled to receive a medical benefit in the amount of $2,145.62 for treatment at Physiotherapy Fix related to a treatment plan dated August 11, 2009 and $3,944.87 for psychological treatment related to a treatment plan dated October 6, 2009, pursuant to section 14 of the Schedule.

3. TD General is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Carr.

4. Mr. Carr is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.

EVIDENCE AND ANALYSIS:

Background

Mr. Carr was born in Jamaica in 1952. He worked in Jamaica for 16 years as an employee of Alcan Jamaica Company. For the first eleven years of his employment, he was a port worker loading and unloading cargo for at least 40 hours a week and more with overtime. He then worked as a chauffeur for Alcan management during the following 5 years before immigrating to Canada in 2002.

Mr. Carr was involved in an accident at the intersection of Jane Street and Steeles Avenue on January 30, 2008 when he was driving home from work in the Vaughan area. He was taken by ambulance to Humber Regional Hospital where he had tests and x-rays. The x-rays disclosed 2 broken ribs for which he received a prescription for pain medication. He saw Dr. Francis Chin, a family physician, the next day. Dr. Chin sent him for another x-ray and recommended physiotherapy treatment. Subsequently, Dr. Chin completed disability certificates dated February 19, 2008², May 14, 2008³, August 14, 2009⁴, and April 12, 2010.⁵

Income Replacement Benefits

Mr. Carr is seeking income replacement benefits under subsection 4(1) of the Schedule which states:

The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:

1. The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

Mr. Carr is also seeking income replacement benefits under subsection 5(2) which states:

The insurer is not required to pay an income replacement benefit,

(b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.

At the hearing before me, Mr. Carr and his wife, Paulina Carr, testified about the issues in dispute. Two medical experts who had performed assessments for the insurer were cross-examined by Mr. Carr’s counsel with respect to the issue of income replacement benefits.

The two expert witnesses were: Dr. Erin Boynton, orthopaedic specialist, and Dr. Emile Ramlochan, chiropractor.

Mr. Carr testified that when he came to Canada in 2002, he began working at Brake Parts of Canada. He packed finished parts into boxes for the automotive industry which involved lifting heavy brake shoes of up to 40 pounds. His job required considerable bending, twisting and heavy lifting. Mr. Carr was laid off in 2004 when the plant closed down and he received employment insurance benefits for 38 to 40 weeks. Subsequently, he began working at Toro Aluminum from June 2006. He lifted and packed windows and doors at the rate of approximately 40 doors per hour and 70 windows per hour. He lifted up to 100 pounds on his own and up to 200 pounds with help. He worked 40 hours a week for $12.65 per hour. Mr. Carr’s employment was terminated at Toro on February 2, 2009, as he had not returned to work since the accident.

At the time of the accident, Mr. Carr lived with his wife, who did not work outside the home, his son, his stepdaughter and her 2 children. His stepdaughter owned the house and he lived in the basement with his wife and his son and paid rent of $500 monthly. Before the accident, he had an active social life, went to church and had no difficulties driving a vehicle. Mr. Carr confirmed that in August 2007, he felt a strain over his shoulders and neck and visited a walk-in clinic. He was prescribed pain medication and the pain disappeared about 4 weeks later. He missed no time from work as a result of this incident.

Mr. Carr testified that his injuries from the car accident affected the following parts of his body: the left side of his neck, across his shoulders, the ribs on his left side, and his lower back. He also experienced pain across his body from the neck down involving both arms, both hands and both legs with swelling across his back. He suffered from depression and headaches which were severe and constant. Now his headaches fluctuate, sometime they go away only to return.

In the first month after the accident, Mr. Carr experienced pain that was constant and severe. After the first month, he testified that he felt 40% better. The pain was constant but not as severe. After the accident, he had financial worries and suffered from loneliness and depression as he could not return to work. His left side hurt, all the way to his foot, when he went walking. Mr. Carr expressed his feelings of shame about being unable to contribute financially to his family. His injuries have also affected his social life and his churchgoing activities. He only goes to church once a month as he has trouble driving, no longer owns a car, and has constant pain on the side of his neck, especially when he tries to turn his head. Mr. Carr’s typical day involves watching TV programs, some reading, especially of the Bible, some meditation, and an occasional walk. He experiences difficulty communicating with his wife and their relationship has suffered since the accident.

Mr. Carr testified that he did not return to work because he was in constant pain and felt depressed. He obtained only a Grade 6 education in Jamaica and was not trained for any work other than heavy labour. He testified that he could not return to a job as a chauffeur, or indeed any driving job, due to his neck and back pain.

In July 2009, Mr. Carr’s wife had triple bypass surgery for her heart condition, which had caused her problems in the previous year. His wife lost 15 pounds in preparation for surgery. The insurer implied that Mr. Carr’s weight decreased from 185 pounds to 165 pounds because his wife did the cooking but Mr. Carr attributed his weight loss to depression. Family members helped during Mrs. Carr’s recuperation from surgery but Mr. Carr was not able to help much, except in a minor way. He described his feelings of helplessness at that time.

At his assessment with Dr. Chin, Mr. Carr told him that he had pain in his neck, ribs, particularly his left ribs which were fractured, and his lower back. In April 2008, Mr. Carr reported that he was 60% improved, particularly his neck. In the progress reports from Physiotherapy Fix, there was no mention of low back pain. Mr. Carr was insistent when he testified that he told his treatment providers about his low back pain.

On June 10, 2008, Physiotherapy Fix noted a further 20% improvement in Mr. Carr’s condition; that is, an improved range of motion, his ribs were fine and there was no mention of low back pain by the chiropractor, Dr. Ihab El-Sawaf.⁶ Mr. Carr again insisted that he knew as a fact that his health care providers were treating his lower back.

Mr. Carr confirmed his functional capacity evaluations with Mr. Atila Balaban, exercise physiologist, on August 7, 2008⁷, February 19, 2009⁸ and November 10, 2009⁹ respectively. Mr. Balaban described his work as heavy material handling and documented the physical demands. He referred to a physical demands analysis report prepared, at the insurer’s request, by Mr. Dave Fugler, kinesiologist, on May 24, 2008.¹⁰ He also documented his observations of Mr. Carr’s performance at functional tasks. In his first report, Mr. Balaban observed that Mr. Carr demonstrated functional limitations in his neck/shoulder region, thoracolumbar region, upper extremity region, lower extremity region and exhibited general deconditioning. He concluded that Mr. Carr’s functional capacities were not consistent with performing heavier activities of normal living such as house/yard tasks or meeting the essential physical demands of his pre-accident employment.

In his second report, Mr. Balaban made similar observations and conclusions but went further by stating that Mr. Carr’s functional capacities are not consistent with meeting the essential physical demands of most sedentary work. Therefore, he found that it was reasonable to conclude that Mr. Carr was not able to perform any work in any capacity. In his third report, Mr. Balaban found that there had been some improvement with respect to muscle strength in the neck/shoulder region. However, Mr. Carr’s functional performance during the work tasks remained essentially the same and he concluded that Mr. Carr was not able to perform any work in any capacity.

Mrs. Carr testified and corroborated much of Mr. Carr’s testimony. She observed that he had pain in his neck, his side, his back and down his leg after the accident. She complained that after the accident, her husband was generally very unhappy due to pain and his inability to return to work. On one occasion when he tried to mow the lawn, he could not finish due to pain. Mrs. Carr testified that her husband no longer drives very often and for short periods of time. According to her, there has been little improvement in his condition since the accident. Generally, he stays in their basement apartment and watches television.

Dr. Boynton was qualified as an expert in orthopaedic surgery, sports medicine and orthopaedic assessments. Her first orthopaedic report is dated May 27, 2008¹¹, followed by reports on May 19, 2009¹² and April 6, 2010.¹³ She determined that Mr. Carr did not suffer a substantial inability to perform the essential tasks of his employment. She testified that she found no indication of an orthopaedic structural abnormality to prevent him from performing his former job or any job.

Dr. Boynton testified that Mr. Carr was cooperative, moved easily and there was no reason to disbelieve anything he told her. She acknowledged that pain may have an impact on function but absent a physical injury, pain cannot be proven. She insisted that pain is a signal, not a disease. In her opinion, if there is pain in a muscle, then the muscle is not being used properly. She testified that Mr. Carr had no structural problem to interfere with function but his flexibility and his core strength needed improvement.

When questioned about Mr. Carr’s work duties, Dr. Boynton responded that she knew he performed heavy work which involved putting window frames on a trolley. The window frames weighed between 50 to 70 pounds. Mr. Carr needed to do a lot of standing, twisting, with many physical demands. However, Dr. Boynton never asked him to lift anything during her assessment. In her opinion, it is necessary to build other parts of muscle to compensate for pain in one area. She insisted that Mr. Carr needed to improve his physical fitness through a work hardening program that would resolve his complaints of pain.

On May 19, 2009 when Dr. Boynton examined Mr. Carr, he had neck and bilateral shoulder pain. He had not yet returned to work as he had left flank and low back pain. Dr. Boynton testified that he had urninary tract and kidney problems which could account for the back pains. In her opinion, his pain initially was in front and linked to his ribs. She agreed as a general principle that the longer an injury remains, the less the likelihood of recovery.

Dr. Boynton testified that she did not recall knowing that Mr. Carr lifted up to 200 pounds with help. She claimed that she had confidence in her clinical experience of twenty five to thirty years and did not need that information to perform her assessment. When the findings of other assessors were pointed out to her, she stated that her interpretation is vastly different and she does not think pain is a disease. Again she insisted that Mr. Carr had not reactivated his muscles and was not doing his exercises.

Dr. Boynton’s second report notes left flank pain but she did not agree that Mr. Carr suffered from chronic pain and does not attribute his pain to the accident. On April 6, 2010, Dr. Boynton concluded that there was no evidence of improved fitness in Mr. Carr’s physical examination compared to his previous examination of May 2008. Dr. Boynton found Mr. Carr capable of performing heavy labour as he had no orthopaedic structural abnormality that would prevent him from returning to his pre-accident employment. She also concluded that from a musculoskeletal perspective he does not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. When Mr. Balaban’s FCE of September 30, 2008 was reviewed with Dr. Boynton, she agreed with his conclusions that Mr. Carr needs to do exercise and become more active. She did not agree that any of Mr. Carr’s ligaments were damaged as there was no structural problem.

Dr. Emile Ramlochan, a chiropractor, was qualified as an expert witness in chiropractic and functional capacity evaluations. He performed an insurer’s examination on May 29, 2008.¹⁴ In his report, he outlines Mr. Carr’s job duties but he did not know how much he had to lift, how many hours a day he worked, or essentially what his pre-accident employment duties were as he did not know what he did at his job. Mr. Fugler’s list of physical demands was not reviewed nor was any job site analysis. It took Dr. Ramlochan approximately 2 hours to conduct his assessment.

Dr. Ramlochan testified that Mr. Carr did not complain of pain during his assessment. In his report, there is no mention of two broken ribs as Mr. Carr did not complain of fractured ribs or any chest area problems. He noted that Mr. Carr was a poor historian and he needed to rely on a body chart.¹⁵ However, the body chart did not reflect any injury to Mr. Carr’s chest or ribs. According to the chart, Mr. Carr’s spinal pain was localized to his cervical, thoracic, and lumbar regions. In Dr. Ramlochan’s opinion, Mr. Carr’s soft tissue injuries in his neck and back did not meet the definition of an impairment under the Schedule. During his functional capacity evaluation, he focussed on Mr. Carr’s neck, shoulders, back and wrist.

Dr. Ramlochan concluded that although Mr. Carr’s functional testing revealed serious deficits this was not a reliable representation of his maximal capabilities due to evidence of symptom magnification and the lack of an underlying, accident organic pathology.¹⁶ Although Dr. Ramlochan performed a physical exam of Mr. Carr, he did not do strength testing so he did not know how much he could lift. Dr. Ramlochan listed “medium” for job demands but did not quantify the overall job demands. Mr. Carr declined to perform certain tasks which Dr. Ramlochan attributed to self-limited effort. Mr. Carr was asked to walk for a total time of 31.9 seconds. Although his job required a good deal of standing, he was tested for alternating repeatedly between standing and sitting. Also, Mr. Carr’s reaching abilities on the right and left are documented but he was tested while sitting down. Dr. Ramlochan concluded that he was dealing with a healthy male who could walk and meet the physical demands of his job with no pathology related to the accident.

Dr. Pierre Kirwin prepared 2 reports dated January 17, 2009 and February 14, 2010 respectively based on his assessments of Mr. Carr.¹⁷ Dr. Kirwin, a physiatrist, stated in his first report that Mr. Carr was unable to perform the essential tasks of his job. He commented that Mr. Carr’s job required frequent lifting of very heavy objects which required repetitive movement of the cervical and lumbar spine that would aggravate his neck and low back pain. In his second report, Dr. Kirwin stated that in his opinion, based on Mr. Carr’s consistent presentation during his 2 assessments which disclosed multiple physical exam findings, Mr. Carr is unable to work in any capacity. He also relied on Mr. Balaban’s assessment for supporting evidence of an inability to perform the essential tasks of his employment. Dr. Kirwin concluded that Mr. Carr had no experience and/or training for lighter jobs.

Conclusion re: Income Replacement Benefits

I found Mr. Carr to be a strong, credible witness who was honest and straightforward. Mr. Carr’s wife was also an impressive witness who corroborated his testimony. I attribute considerable weight to the reports and recommendations of Dr. Chin, Mr. Balaban, Dr. Kirwin, Ms. Kleiman, Dr. Miller and Mr. Antflick, all of which supported Mr. Carr’s claims.

I place little weight on the fact that Mr. Carr attended a walk-in clinic in August 2007, which his wife and some of the assessors did not know. I accept Mr. Carr’s testimony that he missed no work as a result of this pain and fully recovered within weeks of taking pain medication.

There were inconsistencies and weaknesses in both Dr. Boynton and Dr. Ramlochan’s reports and in their testimony. Dr. Ramlochan had no knowledge of the job hours Mr. Carr worked, the weight he was required to lift and did not have a job site assessment to inform him. The human body diagram, which he relied on, does not document Mr. Carr’s 2 broken ribs and resulting chest problems.

Dr. Ramlochan commented that soft tissue injuries did not constitute impairment and says so throughout his report. He relied on an erroneous definition of impairment, which includes loss of function, to find that Mr. Carr suffered no impairment of his neck, shoulders, back, wrists and knees. He ignored the pain experienced by Mr. Carr and seemed to say that if he could not see the injury, it did not exist. Dr. Boynton had incomplete information about Mr. Carr, including no worksite assessment and she was adamant that Mr. Carr simply needed to exercise more and was capable of returning to his pre-accident employment. I placed little weight on the reports and testimony of Dr. Boynton and Dr. Ramlochan.

Mr. Carr relied on a number of cases in support of his claim for income replacement benefits. In Donald Martin v. Workers’ Compensation Board of Nova Scotia and Attorney General of Nova Scotia et al ¹⁸, the Supreme Court of Canada has provided guidance for adjudicators dealing with issues of chronic pain and related medical conditions. The court drew the link between chronic pain and disability in these words:

There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite the lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real.¹⁹

In Shubrook and Lombard General Insurance Company of Canada²⁰, the arbitrator discussed the implication of the Supreme Court’s decision in Martin that it is not appropriate or legally justifiable to stereotype individuals whose disabilities happen to be “less visible” than others. It is curious that Dr. Boynton accepted Mr. Carr’s report of pain and did not only rely on clinical objective findings. However, she found no significant structural abnormality. She had a different and unconventional theory regarding pain. She believed that if Mr. Carr experienced pain, he could be taught to deactivate it.

The insurer placed a good deal of importance on the fact that back pain was not consistently referred to in the medical reports. The insurer submitted that it was only on March 14, 2009 that there is mention in the family doctor’s clinical notes and records of pain in Mr. Carr’s left lower back. The insurer explained this by saying that Mr. Carr was a 57 year old man suffering from possible nephritis and a kidney stone, based on Dr. Chin’s clinical notes. From November 2008 to March 2009, there is no mention of pain in Mr. Carr’s back. There was a great deal of controversy about what was meant by flank pain and the source of Mr. Carr’s back pain. However, the ambulance call report on the day of the accident noted Mr. Carr’s back pain.²¹ The real issue is disability not diagnosis. Basing a diagnosis on subjective clinical findings or lack thereof ignores the case law. I accept the testimony of Mr. and Mrs. Carr that Mr. Carr’s back pain was caused by the accident.

According to the insurer, by mid-2008, Mr. Carr’s condition was worsening because of his wife’s medical history and a new injury to his back. I do not accept this argument as there is no evidence of a new injury to Mr. Carr’s back. In his testimony, Mr. Carr seemed to be genuinely distressed at his inability to assist his wife after her surgery. However, his inability was caused by the accident.

Mr. Balaban prepared three reports with a number of tests to simulate whether Mr. Carr could return to work. His reports contain a consistency of performance chart which documents the presence of functional limitations. Mr. Balaban had entire days of intensive, relevant testing related to his three assessments as contrasted with Dr. Ramlochan’s two hours of testing on one occasion.

Dr. Ramlochan testified that Mr. Carr failed to give maximal effort while being tested. However, he did not consider that Mr. Carr might be incapable of exerting maximal effort due to pain. If Mr. Carr had been capable of providing maximal effort, he would have succeeded in returning to his old job.

Mr. David Antflick, a vocational evaluation specialist and a registered rehabilitation professional, prepared a report for Mr. Carr dated November 26, 2009.²² Dr. Antflick concluded that prior to the accident Mr. Carr was suited to performing occupations which had predominantly medium to heavy physical requirements with no other realistic job options which had fewer demands. He believed that Mr. Carr remains a poor candidate for upgrading and retraining so that because of the accident and his ongoing symptoms, he has lost income, vocational opportunity, security and competitive advantage. Dr. Antflick perceived Mr. Carr to be a “proud, independent individual” who impressed him as “responsible, honest and hardworking.”²³

Dr. R.S. Miller, psychologist, submitted a report to Mr. Carr on March 4, 2010. Dr. Miller found that Mr. Carr was unable to work in any capacity as a result of his “pain problems, his low functional activity and functional levels and his significant depression.”²⁴ Dr. Miller went on to say that Mr. Carr’s vocational options are limited as well by his age, his Grade 6 education and his limited skills.

The insurer submitted that the post-104 week disability is a difficult test to meet under the Schedule. The insurer relied on Lombardi and State Farm Mutual Insurance Company ²⁵ and the arbitrator’s findings that “complete inability” as a phrase modifies “any employment”, distinctly referring to the range of all suitable jobs which raises the standard beyond a relatively sizeable inability for each job. The insurer also relied on Burtch v. Aviva Insurance Company of Canada²⁶ which ruled that it is not necessary for an insured person to be formally qualified and able to begin work immediately for a particular employment to be considered a reasonably suitable alternative. A job for which the insured is not already qualified may be a suitable alternative if substantial upgrading or retraining is not required. Due to Mr. Carr’s work history as a chauffeur, the insurer submitted that he could work as a chauffeur or a cab driver as an alternative.

I do not agree with the insurer’s submissions that the 104-week disability test under the Schedule is not met due to Mr. Carr’s former employment as a chauffeur. We need to look at all of Mr. Carr’s employment years in Canada to determine the nature of his work. Further, Mr. Carr has testified that he can only drive short distances. Dr. Day discusses his fear of driving and his physical pain when he turns his head. He documents significant symptoms which warrant attention but concluded that Mr. Carr did not suffer from a substantial inability to perform the essential tasks of his employment.

The insurer challenged the nature and location of Mr. Carr’s pain and disability. Whether Mr. Carr had neck and rib pain which then metamorphosed to back pain is not the issue. I find that the issue is whether Mr. Carr sustained an impairment, which is defined as a “loss or abnormality of a psychological, physiological or anatomical structure or function” that resulted in a substantial inability to perform the essential tasks of his employment and post-104 weeks whether he was disabled from engaging in any employment for which he is reasonably suited by education, training or experience. Mr. Carr does not own a car and drives only for short duration due to pain. He is incapable of training for a chauffeur’s position or related driving occupations, due to persistent, intractable pain.

I find that Mr. Carr has met his burden of proof to establish, on the balance of probabilities, that he sustained an impairment as a result of the accident such that he suffered a substantial inability to perform the essential tasks of his employment. I also find that Mr. Carr meets the post-104 week disability test as he has established, on the balance of probabilities, that he is disabled from engaging in any employment for which he is reasonably suited by education, training or experience. I echo the conclusion of the judge in Neumeyer v. Wawanesa Mutual Insurance Company²⁷ when I find that Mr Carr’s disability must be viewed in the context of his competitiveness in the existing marketplace. As a result, I conclude that on the balance of probabilities the evidence demonstrates that there were no realistic opportunities for full-time employment for Mr. Carr given the expectations of a reasonable employer.

Medical Benefits

Mr. Carr seeks payment of 2 medical benefits: a benefit in the amount of $2,145.62 for

August 11, 2009 Treatment Plan

Dr. Chin referred Mr. Carr to Physiotherapy Fix for massage, acupuncture and exercise. He went to Physiotherapy Fix for 9 months twice a week. Mr. Carr testified that he found the treatment at Physiotherapy Fix helpful. Dr. Roya Salehoun, a chiropractor at Physiotherapy Fix, submitted a treatment plan dated August 11, 2009 in the amount of $2,145.62 to the insurer, which was denied. Dr. Salehoun’s treatment plan recommended comprehensive rehabilitation with concentration on endurance and strengthening Mr. Carr’s weak upper extremities.

Dr. Shawn Henderson, a chiropractor was qualified as an expert in clinical musculoskeletal problems. He assessed Mr. Carr on September 8, 2009 and determined that Dr. Salehoun’s treatment plan was not reasonable and necessary. The proposed treatment included 14 sessions of exercise, as well as 24 sessions of massage therapy. The estimated duration was 6 to 7 weeks.

Dr. Henderson noted that Mr. Carr’s current complaints centred on his neck and his left flank and low back area.³⁰ He concluded that Mr. Carr sustained soft tissue injuries in the motor vehicle accident, with the exception of the left lower rib fracture, which would have healed. Therefore, in his opinion, Dr. Salehoun’s treatment plan was not reasonable or necessary and not appropriate for or consistent with the injuries sustained in the motor vehicle accident.³¹

Dr. Henderson acknowledged that he did not have Ms. Kleiman, Mr. Balaban or Dr. Kirwin’s reports. He agreed that these reports would have helped to inform him. Dr. Henderson’s report is riddled with errors and inconsistencies. He ignored test results which documented Mr. Carr’s decreased range of movement. He tested Mr. Carr while in a sitting position which did not mimic the requirements of his former employment. Also, he tested Mr. Carr’s standing or walking abilities for seconds which could not adequately test his abilities to perform during 10-hour shifts. He ignored range of movement findings, ignored his job duties and ignored pain and subjective complaints to Mr. Carr’s prejudice. He also assessed ADLs and housekeeping when they were not relevant.

I find that Dr. Salehoun’s treatment plan was reasonable and necessary. Dr. Salehoun’s testing was more intensive and accurate than that of Dr. Henderson. Even Dr. Boynton, the insurer’s assessor, agreed with Dr. Salehoun’s conclusions about the need for Mr. Carr to engage in more exercise and muscle strengthening.

October 6, 2009 Treatment Plan

Dr. Louise E. Koepfler is a registered psychologist who was qualified as an expert witness in the field of psychology and treatment plans. In her report dated October 20, 2009, Dr. Koepfler rejected Ms. Kleiman’s proposed treatment plan which recommended fifteen or sixteen 90 minute sessions of psychological counselling, as not beneficial in isolation. In Dr. Koepfler’s report, she described Mr. Carr as feeling depressed and anxious about his situation. He stated that he feels “like there is no hope, like everything is gone.” Dr. Koepfler described Mr. Carr as

“a straightforward person who does not attempt to magnify his difficulties or avoid activities due to pain .... He appears genuinely distressed by his losses.³²

Dr. Koepfler concluded that Mr. Carr needed a more comprehensive, intensive and multidisciplinary pain rehabilitation program. She testified that Mr. Carr needed more concrete, goal oriented therapy. She did not agree with the diagnosis of post traumatic stress disorder but she believed that Mr. Carr had psychological problems and a pain disorder.

Dr. Kleiman’s treatment plan found that, subsequent to his accident, Mr. Carr experienced saddened mood, increased anger and irritability, persistent worry, sleep and appetite disturbances and cognitive changes. She recommended that Mr. Carr’s progress be monitored and evaluated on a session-by-session basis, with a formal re-assessment in the middle and again at the end of the therapy. Dr. R. Miller, in her March 4, 2010 report, agreed with Dr. Koepfler and Dr. Rod Day, the insurer’s assessors, that Mr. Carr suffered from persistent disabling symptoms of depression. While she agreed with Dr. Koepfler that Mr. Carr would benefit from a multidisciplinary pain management program, she did not agree that Mr. Carr would not benefit from individual psychological treatment, which she viewed as complementary to group pain management sessions.³³

Ms. Kleinman assessed Mr. Carr on April 29, 2008 and September 1, 2009 in a thorough fashion and her reports reflect a realistic understanding of what would be beneficial to Mr. Carr in his situation. While I found considerable merit in many of Dr. Koepfler’s observations and recommendations, I agree with Dr. Miller that Mr. Carr should not be restricted to only one form of treatment. I find that the treatment plan proposed by Ms. Kleiman was reasonable and necessary.

INTEREST

Mr. Carr is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.

SPECIAL AWARD

Subsection 282(1) of the Insurance Act states that:

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

Mr. Carr criticized the quality of the medical reports relied on by the insurer, particularly the reports of Dr. Ramlochan, Dr. Boynton, Dr. Henderson and Dr. Koepfler. I find considerable merit in many of the criticisms of the reports, particularly the failure of the insurer to provide the assessors with updated medical information.

The arbitration hearing itself provided a forum for a careful, thorough review of all the medical assessments and reports. Just as importantly, it provided a forum for the sworn testimony of Mr. and Mrs. Carr and the cross-examination of the insurer’s medical witnesses. Prior to the hearing, the insurer followed the procedural requirements of the Schedule and arranged for a series of assessments including a physical demands analysis, a functional capacity evaluation, a psychological assessment, an orthopaedic assessment, and chiropractic and psychological evaluations. While I find that there were serious flaws in the assessments and medical reports relied on by the insurer to make its decisions about Mr. Carr’s entitlement to benefits, I am not persuaded that the insurer met the standard of unreasonably withholding or delaying payments to Mr. Carr. It was not unreasonable of the insurer to withhold the payment of benefits to Mr. Carr based on its deference to the medical opinions of its own assessors. However, it is to be hoped that insurers will aspire to a higher standard resulting in a more careful review of their medical reports, comparing and contrasting them with those of their insured, so as to guarantee the utmost fairness in their handling of claims.

EXPENSES:

The parties are encouraged to resolve the issue of expenses but if unable to do so, they may apply under the provisions of the Dispute Resolution Practice Code for an expense hearing before me.

July 23, 2010

Judith Killoran Arbitrator

ARBITRATION ORDER

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

1. Mr. Carr is entitled to receive a weekly income replacement benefit at the rate of $326.45 from May 20, 2009 to date and ongoing, pursuant to sections 4 and 5 of the Schedule.

2. Mr. Carr is entitled to receive a medical benefit in the amount of $2,145.62 for chiropractic treatment related to a treatment plan dated August 11, 2009 and $3,944.87 for psychological treatment related to a treatment plan dated October 6, 2009, pursuant to section 14 of the Schedule.

3. TD General is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Carr.

4. Mr. Carr is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.

July 23, 2010

Judith Killoran Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 1, Tab 1
3. 3Exhibit 1, Tab 4
4. 4Exhibit 1, Tab 10
5. 5Exhibit 1, Tab 16
6. 6Exhibit 1, Tab 5
7. 7Exhibit 1, Tab 6
8. 8Exhibit 1, Tab 8
9. 9Exhibit 1, Tab 13
10. 10Exhibit 5, Tab a
11. 11Exhibit 5, Tab F
12. 12Exhibit 5, Tab G
13. 13Exhibit 5, Tab H and tab I
14. 14Exhibit 5, Tab b
15. 15Exhibit 5, Tab b, pg. 10
16. 16Exhibit 5, tab b, pg. 16
17. 17Exhibit 1, Tabs 7 and 14 respectively
18. 18[2003] 2 S.C.R. 504, 2003 SCC 54
19. 19Ibid, pg. 6 of 42
20. 20(FSCO A03-000361, November 26, 2004)
21. 21Exhibit 1, Tab 23
22. 22Exhibit 2, tab 20
23. 23Exhibit 2, tab 20, pg. 14
24. 24Exhibit 1, Tab 15, pg. 12
25. 25(FSCO A99-000957, April 11, 2001)
26. 26(2009) 2009 ONCA 479, 97 O.R. (3d) 550 (C.A.)
27. 272005 CanLII 27522 (ON S.C.)
28. 30Exhibit 5, Tab j, pg. 4
29. 31Exhibit 5, Tab j, pg. 7
30. 32Exhibit 5, Tab K, Pg. 10
31. 33Exhibit 1, tab 15, pg. 14
32. 28Exhibit 1, Tab 9
33. 29Exhibit 1, Tab 17