Financial Services Commission of Ontario

Neutral Citation: 2012 ONFSCDRS 55 FSCO A09-001772/A09-001774

BETWEEN:

MR. Y. Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Fred Sampliner Heard: July 4, 5, 6, 7, 2011 with written submissions during November 2011 Appearances: David S. Wilson for Mr. Y. Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

This arbitration concerns Mr. Y.’s claims for accident benefits under the Schedule¹ against State Farm Mutual Automobile Insurance Company (“State Farm”), which arise from two motor vehicle accidents, March 17, 2007 and July 26, 2007. After mediation failed, Mr. Y. 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. Y. entitled to ongoing income replacement benefits from July 7, 2009?
2. Is Mr. Y. entitled to funding for an orthopaedic examination, neurological examination, financial counselling, and family counselling?
3. Is Mr. Y. entitled to a special award?
4. Is Mr. Y. entitled to interest on any overdue amounts?
5. Is either party entitled to their expenses of this arbitration?

Result:

1. Mr. Y. is entitled to $185 per week from July 7, 2009 to August 1, 2010 under Part II of the Schedule.
2. Mr. Y. is not entitled to orthopaedic, neurological, financial counselling and family counselling assessments under section 24 of the Schedule.
3. Mr. Y. is not entitled to a special award under subsection 282(10) of the Insurance Act.
4. Mr. Y. is entitled to interest on the overdue income replacement benefits under section 46 of the Schedule.
5. The parties’ claims for expenses are deferred.

EVIDENCE AND ANALYSIS:

Mr. Y. was 39 years old, married, with three children at the time he was a passenger in his friend’s car on Highway 401 in Toronto during the early morning hours of March 17, 2007. His friend lost control of the vehicle on snow or ice, the car spun out onto the road divider, sustaining minor physical damage.

Mr. Y. struck the right side of his head against the interior of the passenger door/window. The EMS crew that took Mr. Y. to hospital and the hospital records note his headache complaint, but no loss of consciousness. He was examined/released from hospital that day, went to his family doctor and began receiving massage and physical therapy treatment.

On July 26, 2007, Mr. Y. was driving when his car was rear-ended by another vehicle and the airbags deployed. The EMS personnel at the scene record that Mr. Y. complained of low back pain. At the emergency room, Mr. Y. denied a head injury. The notes show right side flank tenderness and neck pain. Mr. Y. claims that the second accident exacerbated his injuries from the first accident.

Mr. Y. claims that he has continuously suffered from the effects of a head injury, soft tissue injuries to his neck, right shoulder, an injury to his low back and hip, and jaw pain.

Before the first accident, Mr. Y. had been employed part-time as a janitor/cleaner for Twins Maintenance (“Twins”). Mr. Y. argues that as a result of the accidents’ physical and psychological injuries he has suffered a complete inability to perform the tasks of any job for which he is suited by his education, training or experience.² This decision is entirely fact driven.

Ontario Works Records:

Mr. Y. was enrolled in the Ontario Works (“Works”) program before and for quite some time after both accidents. I understand the Works program allowed Mr. Y. to work part-time while receiving the program’s benefits, and the agencies records are useful in understanding both Mr. Y.’s social history and his return to employment post-accident.

The Works records indicate Mr. Y. and his family went through a tumultuous period between 2007 and 2008. Although he reported that his wife separated from the family in April 2007, shortly after the first accident, he did not disclose the separation until a February 2008 agency review of the family’s financial situation.

The Works records during the summer of 2008 indicate Mr. Y. completed thirty (30) hours of volunteer duties at a Hindu temple, cleaning floors and emptying waste bins. The records also show that in August 2010 Mr. Y. told the agency he regained employment as a cleaner and that he requested termination of his benefits in September 2010. The Works records are not refuted by any other reliable documentation and I accept these business records for the truth of their contents.

Employment History:

Mr. Y. was not working at Twins Maintenance (“Twins”) at the time of the March 17, 2007 accident. However, under the Schedule³, Mr. Y. can be considered employed at the time of the accident if he worked 26 of the 52 weeks before the accident.

Twins’ first report after the March 2007 accident showed Mr. Y. working from July 4, 2006 to February 28, 2007, consistent with his official record of employment (“ROE”). However, State Farm takes the position that conflicting information contained in Twins’ April 2010 letter, stating that Mr. Y. worked only until February 7, 2007 along with various inconsistent statements made, undermines the veracity of the employer’s ROE and letter information. State Farm contends that none of the employment information is reliable.

There is no testimony or written explanation for the contradictory information from Twins. In the absence of this, I give more weight to and accept the initial Twins’ report because it is supported by the official ROE. Both of these documents show that Mr. Y. was considered employed by Twins during February 2007.

Relying on the ROE, I find that Mr. Y. was considered employed by Twins part-time (20 hours per week at $8.00 per hour) as a janitor/cleaner until February 28, 2007. Regardless of whether Mr. Y. worked from July 4, 2006 to February 7, 2007 or February 28, 2007, the period covers more than 26 of the 52 weeks before the accident. Therefore I find that Mr. Y. is eligible to claim income replacement benefits as if he was working at the time to the accident.

The evidence is that Mr. Y.’s duties at Twins involved operating steam cleaning, floor waxing and vacuuming machines, dusting and removing garbage. This janitorial work is classified in the Canada National Occupation Career Handbook to require medium strength, coordinated use of his upper limbs and use of multiple body positions. I rely on the employer’s statement of Mr. Y.’s duties, machinery usage and also the physical requirements that are set out in the Handbook.⁴

Mr. Y.’s work experience prior to Twins also involved medium physical labour. He had jobs at a poultry farm⁵, as a restaurant dishwasher⁶, and as a cutter/finisher at a furniture factory⁷, all requiring similar upper and lower body dexterity.

Mr. Atila Balaban is an exercise physiologist whose August 2009 report characterizes Mr. Y.’s work as heavy. His assertion is not supported by the Handbook’s descriptions of Mr. Y.’s past employment, and he has not referenced any other authoritative material justifying that characterization. Therefore, I do not accept Mr. Y.’s work was heavy or Mr. Balaban’s conclusion he cannot perform any work.

Mr. Y. gave his evidence through a Tamil interpreter, and the evidence is clear he has little English language fluency. Mr. Y. has a grade nine education from Sri Lanka, and before moving to Canada he worked planting, tending to and harvesting crops at his family’s farm.

The parties did not present expert reports outlining their positions respecting Mr. Y.’s suitable employment. Thus, I must make a reasonable inference based on the evidence concerning Mr. Y.’s limited education, his previous training and employment history. I find that Mr. Y. is suited for unskilled medium strength factory work, unskilled farm labour and janitorial duties.

Mr. Y.'s Evidence:

There are many factors that lead me to question Mr. Y.’s ability to give accurate evidence. In testimony, Mr. Y. had considerable trouble recalling the degree, frequency or changes in his symptoms. He denied having any health problems before the March 2007 accident, despite reliable evidence to the contrary from the OHIP and his family doctor’s records.

The clinical notes and records of Mr. Y.’s family doctor show he suffered chronic headaches from sinusitis and had been diagnosed with diabetes before the March 2007 accident. Moreover, Mr. Y.’s pre-accident diabetes treatment is set out in his OHIP summary that also indicates he suffered nervousness and back problems before the March 2007 accident. Mr. Y’s dismissal of this reliable documentary evidence without adequate explanation or support, along with his poor recall, lead me to place very little weight on his evidence.

Mr. Y. denied he told Works he found a job in August 2010 or requested termination of his benefits. He denied working at any job since the first accident. Contradicting him are his own 2006 through 2009 tax returns, that show he received almost all of his income from social assistance payments, but no tax evidence to support his contention he continued to receive social assistance after 2009.

Mr. Y. did not explain why the Works program’s information about his 2010 job report was incorrect or how he and his family supported themselves after the agency records show his benefits ended. The Works and tax records are not attacked by reliable documentary sources and this evidence carries more weight than Mr. Y.’s unsupported contention he continued to receive social assistance after September 2010. Based on the Works records, I find that Mr. Y. returned to gainful full-time employment as a cleaner on or about August 2010.

Surveillance of Mr. Y. in late March 2010 video shows him loading items into an SUV and opening the garage door at his home. In September 2010, Mr. Y. drives and he helps to start a car with booster cables. These surveillance activities are relatively short in duration, do not appear to involve cumbersome weight or bear similarity to the hours Mr. Y. spent cleaning. Consequently, the surveillance does not materially detract from Mr. Y.’s claims.

Mr. Y.’s Pre-Accident Health:

Mr. Y.’s OHIP service records show multiple visits to a physician for back complaints in April and May 2006, and once in January 2007. Based on the OHIP records and the clinical notes and records of Mr. Y.’s family physician, it is clear that he was diabetic, suffered periodic anxiety and back pain before the March 2007 accident.

There is no expert health care evidence suggesting that Mr. Y.’s dental problems began with the accident. Most of his teeth were missing before the accident and as a result he wore upper and lower dentures. Mr. Y. also had advanced periodontal disease.

Radiology imaging after the accident clearly demonstrated to health care experts that Mr. Y. had chronic sinusitis and large cysts in the nasal passages. None of the health care experts indicate these nasal conditions were caused by the accident.

I find that at the time of the accident Mr. Y. suffered from diabetes, periodic back pain and anxiety, periodontal disease, sinusitis and nasal cysts.

The Accident Injuries:

The EMS squad and the hospital emergency personnel where Mr. Y. was taken immediately after the March 2007 accident say he hit his head on the door or window and had a headache. They did not record that Mr. Y. complained of back pain. Shortly after the accident Mr. Y.’s family physician, Dr. Aruna Lambotharan, completed a disability certificate showing injuries to the right elbow, a head injury and low back pain. Dr. Lambotharan continued to support Mr. Y.’s disability with brief reports and periodic consultations through 2010.

Mr. Y. complained of low back pain to the EMS at the scene of the July 2007 accident and particularly of right flank tenderness and neck pain when he was at the hospital that day. He denied losing consciousness or suffering a head injury, but later said he hit his head.

Mr. Y.’s low back complaints are supported by radiology imaging and a neurologist’s opinion. An August 2007 spinal MRI shows a mild disc bulge at L5-S1, which slightly impinges on a nerve root, but there is no spinal stenosis (stiffening) or disc herniation. Mr. Y.’s treatment progress was evaluated in an April 2009 functional evaluation that found he had a significant impairment in moving his right hip. Mr. Y. described to State Farm’s August 2008 in-home examiner his experience since the accident with his right leg periodically locking and going numb, sometimes interfering with his walking, shower transfers and causing him to fall.

There is no pre-accident radiology evidence that Mr. Y. had the L5/S1 disc bulge before the accident or nerve impingement. However, it is clear from the records of his family doctor and OHIP services report that he saw his physician for back pain prior to the first accident. There is nothing in the family doctor’s records to suggest Mr. Y. experienced numbness or lockup of his right leg.

Mr. Y.’s family doctor referred him to a neurologist in July 2007 about his low back/right hip pain. Dr. Lance Majl views the MRI imaging as consistent with Mr. Y.’s low back/right hip pain. He wanted to see nerve conduction studies and keep Mr. Y.’s pain under control with medication. The lack of pre-accident evidence that Mr. Y. was diagnosed with an L5/S1 disc bulge/nerve impingement or suffered significant low back/right hip problems together with Dr. Majl’s post-accident interpretation of the radiology imaging persuades me, on balance, that the accidents either caused or significantly contributed to Mr. Y.’s disc bulge at L5/S1.

Mr. Y. had a cervical CT scan in July 2007, in which he has a slight rotation of the jaw and shifting muscle at the C1 level. There is no tissue inflammation in that area, however, the CT scan interpretation attributes Mr. Y.’s jaw rotation to muscle spasm. Dr. Barry Berman, a consulting dentist, found in his 2008 assessment that Mr. Y. suffered from tempromandibular joint disorder and facial pain/headaches from the accidents. He recommended TENS treatments and extensive dental orthotics.

The trouble with Dr. Berman is his assumption that Mr. Y.’s headaches, facial and jaw pain emanate from the accidents, despite his explicit knowledge of pre-accident advanced periodontal disease, missing teeth, poorly constructed upper and lower dentures and sinus problems. I cannot accept any of Dr. Berman’s conclusions and recommendations based on his failure to differentiate between Mr. Y.’s pre-accident and post-accident dental and sinus conditions. Thus, I reject that Mr. Y. suffered any dental injuries, jaw problems or exacerbation of his sinus condition from these accidents.

Mr. Y. retained Dr. Ronald Wilson, a neurologist, to examine him in 2008, 2009 and 2010. In his 2010 report, Dr. Wilson dismisses any neurological basis for Mr. Y.’s continuing complaints respecting his right hand, right leg or symptoms relating to his head injury. Dr. Wilson did not directly address the degree of Mr. Y.’s disability in his hip/low back, but he indicates there is no neurological basis to support a work or household disability in 2010. Dr. Wilson’s rejection that the head, right leg and hand symptoms are accident-related does not support Mr. Y.’s claims.

Mr. Y. retained an orthopaedic surgeon in mid-2009 to analyze his condition in respect of the accidents. Dr. Bernard Woolford reviewed Mr. Y.’s medical records, examined him and conducted thermographic (heat) studies of the facial region and hip, which he accepted as confirming the symptoms in these areas. He further accepted that the MRI image of the lumbosacral disc bulge touching on the L5 nerve root is consistent with Mr. Y.’s low back/hip and leg symptoms. In 2009, Dr. Woolford held that Mr. Y. could not work at any suitable job.

Mr. Y. showed some improvement when Dr. Woolford re-examined him in February 2010, after having undergone nerve block injections. The new thermographic studies were relatively unchanged from the prior year, but Dr. Woolford considered the importance of Mr. Y.’s report of reduced symptoms, cessation of medication and stoppage of physiotherapy treatment. He recommended Mr. Y. look for light-duty employment in 2010, cautioning he should not resume heavy duties.

Dr. Edwin Urovitz was the first insurer sponsored orthopaedic expert to examine Mr. Y. (August 2007). Dr. Urovitz opined Mr. Y.’s sustained soft tissue injuries that should have healed by the time of his examination. He could not understand the persistence of Mr. Y.’s symptoms, despite the MRI showing an L5/S1 disc bulge with some nerve involvement, concluding in his report that he could likely complete his domestic duties.

In testimony, Dr. Urovitz conceded that the disc bulge/nerve impingement shown on the MRI imaging of Mr. Y.’s low back was consistent with and could possibly explain the persistence of his pain. He further agreed he did not know Mr. Y. had been involved in a second accident, and agreed that Mr. Y.’s second accident might prolong the pain. Dr. Urovitz’s dismissal of the significance of Mr. Y.’s L5/S1 disc bulge and nerve involvement along with his admission that it could explain his persistent pain reduces the weight of his opinion that he could resume his duties.

In January 2010, Dr. Charles Godfrey, a physiatrist, reviewed Mr. Y.’s health records and examined him for State Farm. He concluded that Mr. Y. sustained simple soft tissue injuries as a result of the March 17, 2007 accident, had fully recovered and did not suffer a complete inability to work at a suitable job.

Dr. Godfrey testified he could find no basis to support Mr. Y.’s long-term pain complaints because there was no objective cause. He agreed with Dr. Urovitz’s opinion there was no nerve root involvement or significant findings on the imaging of Mr. Y.’s L5/S1 joint, but conceded that his inability to stand on his toes during the exam is consistent with his pain complaints in the lumbar and right hip region. Dr. Godfrey’s admission that Mr. Y.’s inability to perform a toe stand supports his complaints coupled with his unexplained discounting of the 2007 MRI image are my reasons for lowering the value of his opinion.

Psychological Evidence:

Both Dr. Wilson and Dr. Woolford thought Mr. Y. showed there was a psychological overlay to his physical problems. Dr. Gloria Fiati, psychotherapist, interviewed and tested Mr. Y. in October 2007 and January 2008. Her conclusion that Mr. Y. suffered moderate to severe post-traumatic stress from the accident and recommendation for counselling does not address his work abilities.

Mr. Y. retained a clinical psychologist, Dr. Oren Gozlan, to evaluate his condition in September 2010. Dr. Gozlan found that Mr. Y. suffered severe anxiety, severe depression and high symptoms of chronic adjustment disorder based on clinical testing, his interview and document review. His tests indicated that Mr. Y. magnifies his illness as part of an inclination to complain and express genuine distress, but he found no basis in the test results to indicate a conscious intention to mislead or feign symptoms. Dr. Gozlan portrays Mr. Y.’s negative outlook as substantially limiting his work abilities, concluding he could not perform at any suitable job due to his psychological condition.

Dr. Gozlan’s portrayal of Mr. Y. as unable to work at any job is contradicted by the evidence he had just started working again as a janitor at about the same time. The contradiction seriously undermines Dr. Gozlin’s opinion, and I give it little weight.

State Farm’s psychologist, Dr. James Alcock, similarly diagnosed an anxiety/depressive disorder. His psychological tests in September 2008 validated what appeared to be Mr. Y.’s genuine sense of helplessness worrying about his future employability, but he speculated the condition would resolve over time. Dr. Alcock does not discuss the effect on his function, except to summarily conclude that it did not inhibit his ability to work. His lack of reasoned analysis of Mr. Y.’s functional work limitations reduces the value of his report, and I give his opinion modest weight.

Dr. Konstantine Zakzanis deemed most of Mr. Y.’s psychological test results either invalid or unreliable. He acknowledges it is reasonable the accident upset Mr. Y., but he felt there was no compelling evidence of a psychological disability without valid objective data from his psychometric testing.

While I understand Dr. Zakzanis’ refusal to speculate about a diagnosis or disability, his observation of Mr. Y.’s continued upset about the accident during the interview contradicts his insistence on valid psychological tests results. I would have expected Dr. Zakzanis to provide some analysis of Mr. Y.’s reaction to the accident through his observations and the written material he had in his possession. Therefore, I give his opinion little weight.

The psychological experts come to differing conclusions about Mr. Y.’s function, but generally agree he was depressed about not working and quite anxious over his future. The relative weakness of Dr. Gozlan’s opinion Mr. Y. cannot work is demonstrated by the evidence he was in fact working, and I am more inclined to place some weight on Dr. Alcock’s opinion that the psychological factors did not inhibit his working. Balancing Dr. Alcock’s view with the evidence Mr. Y. suffered anxiety pre-accident, I find that the two accidents did not significantly contribute to Mr. Y.’s psychological state.

Disability Analysis:

Mr. Y.’s periodic low back complaints before the accident did not cause his treating physician to investigate this condition. Whereas, after the accident there is objective data on the MRI that shows a disc bulge/nerve impingement at L5/S1 and a temperature increase on thermography studies of the right hip/leg. Based on the MRI interpretation and Dr. Woolford’s diagnosis, I find that the accidents caused or significantly contributed to Mr. Y.’s low back condition.

Dr. Woolford presents a compelling and balanced analysis of Mr. Y.’s ability to work. He did not try to explain away or discount Mr. Y.’s low back problem shown on the studies when he initially gave his opinion in 2009, and he later correctly anticipated Mr. Y.’s work resumption in 2010 after hearing him admit to reduced symptoms and treatment/medication stoppage. These factors give me confidence in Dr. Woolford’s opinion, and I rely on him.

Dr. Woolford said it was safe for Mr. Y. to resume light duties in February 2010. He did not recommend Mr. Y. engage in medium strength janitorial, farm or factory work at that time. Despite Mr. Y.’s lack of credibility I draw a reasonable conclusion from Dr. Woolford’s opinion that Mr. Y. could not resume medium strength work in early 2010.

The evidence is that Mr. Y. did resume cleaning work in August 2010. Based on Dr. Woolford’s opinion and the Works report that Mr. Y. resumed employment as a cleaner, I find on a balance of probabilities that Mr. Y. suffered a complete inability to engage in reasonably suitable employment as a result of the accidents from July 7, 2009 to August 1, 2010, and that he is entitled to income replacement benefits under subsection 5(2)(b) of the Schedule during this period.

Costs of Examination:

State Farm denied funding for Dr. Morris Charendoff’s $2,200 orthopaedic assessment, Dr. Lance Majl’s $2,200 neurological assessment, Global Health Group’s $1,959.69 financial counselling and $1,753.72 marriage and family counselling. Mr. Y. must establish on a balance of probabilities under section 24 of the Schedule that the examinations he asked State Farm to fund were reasonably required in relation to his accident benefits.

Mr. Y. claims funding for neurology and orthopaedic assessments. Dr. Woolford completed a thorough orthopaedic examination and testing of Mr. Y.’s condition in 2009 and 2010, and I find that the September 2008 proposal from Dr. Charendoff is duplicative and therefore not reasonable. In September 2008, Dr. Majl also proposed a second neurology report, following his first in July 2007. There is no evidence suggesting that Mr. Y.’s condition changed during this period, and I find Mr. Y. has not established that the neurological examination was reasonable either.

Mr. Y.’s November 2008 claim for a family counselling assessment recommended by a social worker, Ms. Nazeema Baksh, who based it on the family disruption following the accident. Although Works reports that Mr. Y. said in a November 2008 meeting that his wife separated from the family shortly after the first accident, the evidence submitted is that she made claims to State Farm for housekeeping and childcare showing her address as the family residence during this period. The couple’s continued cooperative functioning as a family persuades me that an assessment for family counselling is not reasonable. I deny Mr. Y.’s claim for an assessment of family counselling.

Mr. Y.’s claim for financial counselling is also based on Ms. Baksh’s November 2008 recommendation. She maintains that Mr. Y. requires financial counselling because he is having problems meeting his financial obligations as a result of the accident. While I can accept Mr. Y. might suffer money strains following the accident, he submitted no documentary evidence to support Ms. Baksh’s assertion and I cannot accept it based on his unreliability. I deny this claim as well.

Special Award:

If an insured person establishes an insurance company unreasonably withheld or delayed payment of a benefit, an arbitrator may award an additional amount under subsection 282(10) of the Insurance Act in addition to the benefits recovered in the arbitration. Mr. Y. claimed a special award throughout this proceeding, but his submissions do not provide a factual basis or rationale. In my view, this is not an appropriate case for a special award based on the evidence submitted. I deny Mr. Y.’s claim for a special award.

Interest:

I find that Mr. Y. is entitled to interest on the awarded income replacement benefits in accordance with section 46 of the Schedule.

EXPENSES:

I defer on the issue of the parties’ claims for their respective expenses until I hear from counsel whether they can resolve this issue expeditiously. If expenses are disputed, both counsel should review Dispute Resolution Practice Code Rules 75 through 79 first, amicably arrange the order of their written submissions and complete this process on or before June 8, 2012.

March 30, 2012

Fred Sampliner Arbitrator

ARBITRATION ORDER

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

1. State Farm shall pay Mr. Y. a $185 weekly income replacement benefit under subsection 5(2)(b) of the Schedule from July 7, 2009 to August 1, 2010, together with interest calculated on the overdue amounts under section 46 of the Schedule.
2. Mr. Y.’s claims for neurological, orthopaedic, financial and family counselling assessments under section 24 of the Schedule are dismissed.
3. Mr. Y.’s claim for a special award under subsection 282(10) of the Insurance Act is dismissed.

March 30, 2012

Fred Sampliner Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Subsection 5(2)(b) of the Schedule
3. 3Subsection 4(2)ii
4. 4National Occupational Classification Career Handbook, Minister of Supply and Services Canada (1996)
5. 5Handbook job no. 8431
6. 6Handbook job no. 6642.3
7. 7Handbook job no. 9493.1 and 9513