Neutral Citation: 2014 ONFSCDRS 146

FSCO A12-002294

BETWEEN:

ETTORE GALLO

Applicant

and

CUMIS GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Jessica Kowalski

Heard: July 8, 9 and 10, 2013, in Hamilton, Ontario

Appearances: Arthur R. Camporese for Mr. Gallo

Daniel J. Rosenkrantz for CUMIS General Insurance Company

The Applicant, Ettore Gallo, was injured in a motor vehicle accident on December 8, 2008. He applied for and received statutory accident benefits from CUMIS General Insurance Company (“CUMIS”), payable under the Schedule.¹

CUMIS paid income replacement benefits (“IRBs”) to Mr. Gallo until August 21, 2011, notwithstanding a stoppage purporting to take effect October 28, 2010. CUMIS also terminated housekeeping and home maintenance benefits effective October 20, 2010, and only partially approved psychological treatment recommended in 2012.

Mr. Gallo disputed CUMIS’ termination of benefits. The parties were unable to resolve their disputes through mediation, and Mr. Gallo applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues:

Is Mr. Gallo entitled to a weekly income replacement benefit in the amount of $400.00 per week from December 8, 2008² to date and ongoing?
Is Mr. Gallo entitled to housekeeping and home maintenance benefits in the amount of $30.00 per week from October 20, 2010 to December 7, 2010?
Is Mr. Gallo entitled to a medical benefit in the amount of $5,371.70 (less $2,305.60 paid) for psychological treatment by Kaplan & Kaplan recommended in a treatment plan (OCF-18) dated June 26, 2012?
Is CUMIS liable to pay a special award because it unreasonably withheld or denied benefits? If so, in what amount?
Is Mr. Gallo entitled to interest on unpaid benefits?

Result:

Mr. Gallo is not entitled to a weekly income replacement benefit from December 8, 2010 onwards.
Mr. Gallo is not entitled to housekeeping and home maintenance benefits from October 20, 2010 to December 7, 2010.
Mr. Gallo is not entitled to further payment toward the psychological treatment recommended by Kaplan & Kaplan in a treatment plan dated June 26, 2012.
CUMIS is not liable to pay a special award.
Because I find no outstanding benefits, there is no order for interest.

EVIDENCE AND ANALYSIS

Admissibility of surveillance evidence

Mr. Gallo sought an order that a surveillance report and DVD that were put to him during his cross-examination were inadmissible. For oral reasons set out at the hearing, I found that the evidence was relevant and therefore admissible pursuant to section 15 of the Statutory Powers Procedure Act. I also considered Rules 1, 40 and 81.1 of the Dispute Resolution Practice Code (the “Code”).

Mr. Gallo submitted that CUMIS did not comply with Rule 40 of the Code. Rule 40 provides that, where a party intends to rely on any portion of surveillance or investigative evidence, the party shall at least 30 days before the hearing provide the names and qualifications of the investigator and the dates times and places the surveillance was undertaken, as well as copies of all videotapes, photos, reports and summaries.

CUMIS sent the reports and DVD disc to Mr. Gallo’s counsel by letter dated May 16, 2013 (in advance of the 30-day requirement in Rule 40). Through no apparent fault of anyone, the DVD could not be played back. 12 days later, on May 27, 2013, Mr. Gallo requested disks compatible with a Windows Media Player. On June 12, 2013, CUMIS hand delivered the original DVDs. This was 26 days before the start of the hearing.

In the circumstances, I exercised my discretion pursuant to Rule 81.1 of the Code to set aside a time limit in the Rules. I found that there was no intent to deliver the DVDs late, and that the fact that the DVDs could not be played back was unusual and not the fault of CUMIS. I found that CUMIS acted reasonably expeditiously to provide replacement disks.

With respect to the rule in Browne v. Dunn, I found that CUMIS filed the evidence as part of its case and not in an effort to ambush Mr. Gallo. The report was served in time and Mr. Gallo agreed to an overwhelming majority of the events in the report as they were put to him during cross-examination. I gave counsel the opportunity to re-call Mr. Gallo if he felt it was necessary.

The accident

Mr. Gallo was on his way to work when a pick-up truck proceeded through a red light and struck his car on the rear driver’s side. Mr. Gallo hit the left side of his head on the centre seat post.

Mr. Gallo stayed in his car until an ambulance arrived. He could not recall whether he lost consciousness; if he did, he regained it before the ambulance came. According to the ambulance call report, there was no loss of consciousness and no visible trauma or injuries,³ although Mr. Gallo appeared to be in mild discomfort and complained of pain in the left parietal area. Ambulance attendants assessed Mr. Gallo, applied a cervical collar and placed him on a backboard for transport to Hamilton Health Sciences Centre.

According to the emergency room record, Mr. Gallo’s neck was not tender. He had full range of motion. He had a hematoma on the left side of his head. The hospital records noted minimal damage to Mr. Gallo’s car and no loss of consciousness, but that he complained of tingling in his hands bilaterally. He was discharged after approximately one hour with advice regarding head injury precautions and over-the-counter pain medication, if needed.

Shortly after his discharge from the hospital, Mr. Gallo says he began to experience pain affecting his neck, left shoulder and lower back. Subsequent x-rays of Mr. Gallo’s head, neck and back revealed no fractures. An ultrasound of his left shoulder revealed no tears. He was diagnosed with soft tissue injuries, and referred to an orthopaedic specialist who diagnosed whiplash and tight muscles.

At the time of the accident, Mr. Gallo was employed as an auto body technician. He has not returned to any type of work since the accident.

On December 7, 2010, the eve of the two-year anniversary of the December 8, 2008 accident, Mr. Gallo was injured in another accident while a passenger in a car travelling on the QEW. Only his impairments as a result of the December 8, 2008 accident are the subject of this arbitration.

Income Replacement Benefits

Mr. Gallo’s position

Mr. Gallo submits that he is not ready to re-enter the workforce in any capacity due to a combination of physical and psychological impairments.

He says that, as a result of the 2008 accident, he was substantially unable to return to his pre-accident employment as an auto body technician because of physical limitations. He says that he continues to have ongoing psychological symptoms and functional limitations that prevent him from pursuing any of his pre-accident jobs or other employment for which he may be reasonably suited by his education, training or experience.

Mr. Gallo also submits that CUMIS acted unreasonably in terminating his benefits on the basis that he could return to his pre-accident employment, and in failing to assist him with vocational retraining and workforce reintegration. He says CUMIS failed to undertake any labour market surveys, transferable skills analyses or assessments to identify other suitable employment beyond his various pre-accident jobs.

He has identified two vocations, insurance adjuster and mortgage broker, that he has expressed interest in pursuing, based on his own vocational assessment (which was not submitted into evidence) and submits that CUMIS should assist with his retraining.

CUMIS’ position

CUMIS submits that, not only is Mr. Gallo able to return to his pre-accident employment as an auto body technician, but that he has experience in a number of other jobs for which he is reasonably suited because of his training, education or experience and which CUMIS says are of a quality and ease that Mr. Gallo could return to them if he so chose. Apart from being able to return to his employment as an auto body technician, CUMIS argues that Mr. Gallo is not impaired from returning to a job in car sales, work he also engaged in before the accident.

Although CUMIS submits that Mr. Gallo was able to return to his pre-accident job as an auto body technician as of October 28, 2010, it concedes that it failed to issue a proper notice of termination and continued to pay Mr. Gallo IRBs to August 21, 2011.

CUMIS did not seek a repayment of the IRBs paid after October 28, 2010; however, it disputes that Mr. Gallo was entitled to IRBs after that date.

First 104 weeks after the accident

To be entitled to IRBs within the first 104 weeks following the accident, Mr. Gallo must prove that he suffered a substantial inability to perform the essential tasks of his employment at the time of the accident.

There is no dispute that CUMIS paid Mr. Gallo IRBs for the first 104 weeks after the accident, plus a further 36 weeks, because it failed to notify him that it was terminating his benefits within the time limits set out in s. 37 of the Schedule.

CUMIS did not notify Mr. Gallo it was terminating IRBs effective October 28, 2010 until June 7, 2011, although it based its termination on a September 27, 2010 functional abilities evaluation and an orthopaedic addendum report dated October 28, 2010 which concluded that Mr. Gallo no longer suffered a substantial inability to perform the essential tasks of his pre-accident employment as an auto body technician. CUMIS acknowledges its error but disputes that Mr. Gallo is entitled to IRBs beyond 104 weeks because he does not meet the test.

As Mr. Gallo was actually paid IRBs beyond the purported termination date of October 28, 2010 and beyond the 104-week mark, and CUMIS is not seeking repayment, I find the issue of whether or not Mr. Gallo met the substantial inability test for entitlement to IRBs within 104 weeks after the accident moot, and not relevant to whether he meets the stricter test of entitlement to benefits beyond 104 weeks after the accident. Accordingly, there is no need for me to decide that issue.

Post-104 week IRBs

In order for Mr. Gallo to be entitled to receive IRBs for any period longer than 104 weeks of disability after the accident, he must prove, on a balance of probabilities, that as a result of the 2008 accident he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

For the reasons that follow, I find that Mr. Gallo has not proved that he is completely unable to do any work for which he is reasonably suited by education, training or experience as a result of the 2008 accident.

Credibility

Many cases that come before the Commission involve complaints of impairments due to soft tissue injuries, of which there is little objective evidence. In these cases, treatment providers, assessors and arbitrators must assess the reliability of the applicant’s subjective reports of, among other things, the amount of pain he is experiencing, the degree to which that pain limits function, and the amount of relief provided by various forms of treatment.⁴ As Arbitrator Feldman put it in the case of Seyed and Federation⁵: credibility is key. Causation may also be an issue. This is such a case.

I find that Mr. Gallo’s oral evidence was not consistent with what he was telling his own and the insurer’s assessors, or with the surveillance evidence obtained by CUMIS. When compared with comments he made to his own assessors, and with comments by his own and the insurer’s assessors, as well as with his oral testimony and the surveillance evidence, I find that Mr. Gallo’s evidence was simply not credible.

A complicating factor in this case is the second accident, in which Mr. Gallo sustained a serious hip injury.

I find that, in his testimony and in what he was telling assessors, Mr. Gallo attributed impairments to the 2008 accident that were caused by the 2010 accident. In one important assessment at the critical two-year mark, Mr. Gallo failed to even mention the 2010 accident, blaming all of his impairments on the 2008 accident.⁶

I find that Mr. Gallo’s post-December 8, 2008 impairments improved before the 2010 accident, such that he was not prevented from working as a result of the 2008 accident and that he was reasonably suited by training and experience to at least return to work in car sales.

Mr. Gallo’s pre-accident life and work

Mr. Gallo was 45 years old at the time of the accident. Seven months earlier, in May 2008, his long term relationship of six years ended. He moved into his parents’ home after the break-up, where he lives with his brother and helps to look after his parents.

For approximately ten years from 1997 to November 2007, Mr. Gallo worked as an auto body technician at Oakland Auto Body, a job classified as heavy. His work involved taking apart cars and putting them back together, putting them on frame pullers, and preparing them to be painted.

In 2007, while he was working at Oakland, the manager of a KIA dealership that did business with Oakland Auto Body invited Mr. Gallo to work as a salesperson at the dealership. Mr. Gallo left his employment at Oakland Auto Body on good terms in November 2007, and started a sales job at the KIA dealership.

Mr. Gallo testified that he did not get along with the management at KIA, and did not like their practices. Although he did generate sales, Mr. Gallo testified that it was not enough to sustain his lifestyle.

He worked at KIA for some seven months from November 2007 until he quit in May 2008, around the same time that his relationship ended and he moved to his parents’ home. For the next six months, Mr. Gallo was unemployed. He gave no explanation for what he did during that time, or whether or not he sought work at a different car dealership or at all. Mr. Gallo returned to his previous work as an auto body technician at Oakland Auto Body on November 3, 2008, where he worked for the five weeks immediately preceding the accident.

Before 1997, Mr. Gallo had a number of different jobs. Following high school, he worked as a labourer and in construction, and then in restaurants. He worked as a manager in at least three different restaurants. Mr. Gallo completed a college-level data processing course. He earned a paralegal certificate but did not pursue paralegal work. Around 1997, he started working at Oakland Auto body.

The medical evidence

Physically, Mr. Gallo testified that he:

had ongoing and constant headaches
had neck pain and stiffness , left shoulder pain, pain in his mid-back from his waist down to his left leg, and low back pain
had numbness and tingling along the full left side of his face, down to the left side of his neck.

Apart from his physical limitations, Mr. Gallo testified that the accident caused psycho-emotional impairments. He testified that, after the accident, he:

was depressed
had difficulty concentrating
was dizzy and foggy all the time
had low mood, low stamina and low energy
was irritable with and lashed out at his family
had difficulty finding companionship because his employment situation negatively affected his ability to date
did not want to socialize and spent the majority of his time in his room.

Both his treating psychologist, Dr. Dywan, and the insurer’s examiner, psychologist Dr. Blackstock, diagnosed Mr. Gallo with depression.

For the reasons that follow, I find that by December 7, 2010, Mr. Gallo had reported sufficient improvement to his various assessors that he no longer suffered a complete inability to do any work for which he was reasonably suited by education, training or experience, including his former work in car sales. I further find, as set out above, that Mr. Gallo reported impairments after December 7, 2010 that he alleged were barriers to a return to work but which were unrelated to the 2008 accident.

Self-reported improvements

By the time of the 2010 accident, Mr. Gallo testified that he had made only a “little bit of progress.” What little progress he made, he says, was worsened after the 2010 accident.

I find, however, that Mr. Gallo’s condition was improving by early 2010 and that he made noteworthy statements to insurer examiners about his progress.

In May 2009, Mr. Gallo began to see psychologist Dr. Dywan, following a referral by his family doctor, Dr. Toffolo and with whom he discussed his moods, vocational and relationship concerns, as well as concerns regarding his cognitive function.

With respect to his concerns about cognitive function, in a May 27, 2009 report, Dr. Dywan noted that a neuropsychological assessment of Mr. Gallo about three months’ post accident indicated general average intellectual abilities and that his basic working memory and processing speed were entirely within the expected range. Dr. Dywan wrote that overall Mr. Gallo’s results suggested that his cognitive abilities “are generally well preserved.” He diagnosed major depression, post-traumatic stress disorder, and post-concussive syndrome, but also noted that reintegration into the workforce was a goal for Mr. Gallo.

Although Mr. Gallo complained that his headaches were constant, when he visited physiatrist Dr. Mathoo following a referral by his neurologist Dr. Gianmarco, Dr. Mathoo wrote in his clinic note dated April 9, 2010 that the headaches that used to be present every day had reduced in frequency to three times per week.

When Mr. Gallo met with the insurer’s orthopaedic specialist, Dr. Porte, for an orthopaedic assessment in July of 2010, he reported that, by early 2010, all of his symptoms had plateaued. According to Dr. Porte’s July 13, 2010 report, Mr. Gallo reported that his ability to concentrate was improving and that his symptoms of neck pain, numbness and tingling down his neck had reached a plateau in the last five to six months. He also reported that his headaches had plateaued in the last four to five months, occurring 75% of the time and lasting approximately one hour, as opposed to being constant.

On May 25, 2010, Mr. Gallo met with the insurer’s psychological assessor, Dr. Blackstock, who opined that from a psychological perspective Mr. Gallo did not suffer a substantial inability to perform the essential tasks of his pre-accident. According to Dr. Blackstock’s June 18, 2010 report, Mr. Gallo was reporting a “great deal of improvement” in the psychological/emotional realm which he attributed to his ongoing psychological treatment, and estimated that he had experienced “60-70% recovery psychologically.”

When specifically asked if there were any psychological barriers to returning to his former employment Mr. Gallo answered that he was now “psychologically O.K.” but could not perform physical requirements of the job.

I find that Mr. Gallo’s statements were significant representations about how he was feeling at the time about both work and his day to day life. Where he was earlier reporting social withdrawal, by this time he reported to Dr. Blackstock that he now very much enjoyed and looked forward to spending time with family and friends on weekends and he was driving and even riding his motorcycle.

Because Mr. Gallo reported that he had not returned to his pre-accident work because of pain, Dr. Blackstock administered a number of tests that suggested that Mr. Gallo was over-reporting his symptoms. Mr. Gallo scored very high on a validity scale that measured absurd symptoms. His score on this subscale was above average, “highly atypical” according to Dr. Blackstock, suggesting that Mr. Gallo endorsed symptoms that he did not experience. Dr. Blackstock wrote that, “Patients who score in [Mr. Gallo’s] range tend to describe symptoms which are grossly out of proportion with any measurable organic pathology.”

Dr. Blackstock also measured infrequent symptoms using a subscale that measures items including those that are bizarre and unlikely. Mr. Gallo again scored very high, above the normal range endorsing symptoms that are not typically endorsed by pain patients.

On the maximisation subscale, which measured Mr. Gallo’s tendency to over-report the severity of his symptoms, Mr. Gallo scored “significantly” above the expected range compared to pain patients. According to Dr. Blackstock’s report, Mr. Gallo’s score suggested that he may have been attempting to over-report his actual level of pain and disability.

With respect to depression, although Dr. Blackstock agreed that Mr. Gallo was depressed, he opined that “[b]ecause of his tendency to grossly exaggerate his symptoms as indicated in the validity scales…it is not possible to know the actual nature or true dimensions of his depressive symptoms.”

Finally, Dr. Blackstock wrote that Mr. Gallo’s elevated scores under activity limitation subscales showed that Mr. Gallo’s self-reports of pain and pain related disability may not accurately reflect his true level of impairment and that “it is highly likely that Mr. Gallo’s responses do not accurately reflect his true level of distress/disability.”

Like Dr. Derby before him, Dr. Porte acknowledged that Mr. Gallo was complaining of pain but he could find no reason to account for the pain. Even Dr. Dywan testified that Mr. Gallo had a tendency to worry and catastrophize.

Despite the invalidities and exaggerations, Dr. Blackstock was nevertheless not willing to say there was nothing wrong with Mr. Gallo and continued to support the need for treatment for Mr. Gallo’s depression and post-traumatic stress disorder.

Mr. Gallo also met with the insurer’s neurologist, Dr. Derby in the spring of 2010. In his report dated June 3, 2010, Dr. Derby wrote that he could identify no abnormal findings on neurological examination of Mr. Gallo. Dr. Derby reviewed Mr. Gallo’s MRIs. Although the scans were not in evidence, the reports that I do have make it clear that the findings on Mr. Gallo’s MRIs and EMG studies set out that the findings had nothing to do with Mr. Gallo’s complaints. Dr. McComas, a neurologist who saw Mr. Gallo on August 16, 2010 at the request of Mr. Gallo’s counsel, concluded that Mr. Gallo’s complaints were not related to his EMG and objective findings of some nerve root damage. The symptoms of numbness that Mr. Gallo described could not be explained by his injuries.

Surveillance

I find that the surveillance evidence contradicts Mr. Gallo’s representations both during his various assessments and his testimony during the hearing. The surveillance is incongruous with Mr. Gallo’s evidence and testimony regarding his limitations and I find that it brings his credibility into further question.

Mr. Gallo testified that, because of the 2008 accident, he:

could not walk or stand for prolonged periods
has low energy and “can’t last that long”
could not turn his neck like he used to
had begun to take only short walks and spend time with his nieces and nephews but that he still had difficulty relating with others.

He identified all of these limitations as barriers to employment.

CUMIS undertook surveillance of Mr. Gallo over the course of three days on October 20, 21 and 22, 2009.

The surveillance took place between two assessments (one Mr. Gallo’s and another by the insurer) discussed below, during which Mr. Gallo complained that he could tolerate only limited sitting and standing for short periods.

On the first day of surveillance, Mr. Gallo was videotaped walking, driving, and going to Aim Health Group, presumably for treatment.

On the second day, October 22, 2009, Mr. Gallo was surveilled for almost 11 hours as he went sightseeing with four others in the Niagara region. He travelled a long way to Niagara-on-the-Lake, Welland, Niagara Falls, was able to take a one hour winery tour, dine and spend almost two hours at a casino.

The surveillance showed Mr. Gallo engaging in ordinary sightseeing activities, talking and laughing hours into the day, walking for extended periods, looking around, bending at his waist, and jogging up some steps.⁷

Mr. Gallo moved easily into and out of his own car, into an SUV as both a passenger and driver, and the van his party used for their trip. He was observed walking briskly, going to the mall, standing around having a coffee, tilting his neck back to finish his drink. He moved freely, moved his limbs freely, and bent easily at the waist. At one point he bent over an observation deck overlooking an escarpment and leaned over the railing with arms fully extended.

The trip was capped off with an almost two hour stop at the casino before Mr. Gallo and his party drove home, where Mr. Gallo admitted on cross-examination that the evening continued when his older brother came to visit.

The next day, Mr. Gallo was surveilled out and about, and bending into and out of his car, another van, and driving around for two hours.

I also find the DVD probative for what it did not show. There is no appearance of discomfort. There is no evidence whatsoever that Mr. Gallo stopped at any time to rest or that he appeared in any way fatigued, as he was suggesting to assessors would be the case.

When asked about the surveillance at the hearing, Mr. Gallo did not testify that he was at all uncomfortable. He did not say that he was in pain or fatigued or that it was difficult to walk for more than the 10 or 15 minutes he was telling assessors he could tolerate. He did not testify that he had difficulty sitting in a car for long periods. He did not testify that he needed any pain medication to get through the day.

Apart from disputing that he jogged up some concrete stairs, Mr. Gallo’s only evidence about the surveillance was that he struggled through the day because his cousin was visiting from Italy. In a telling statement, he testified that he made the effort because he had to.

I recognize that sightseeing, wine tours or a casino visit are not what Mr. Gallo would ordinarily be expected to do working as a car salesman. The surveillance does, however, show that Mr. Gallo, contrary to his representations to assessors and in direct examination, was able to engage in varied activities over a day that was longer than an expected work day without any evidence that it was difficult for him when he was representing to examiners that he had serious limitations.

I find that the surveillance shows Mr. Gallo as someone who was relaxed, fully engaged and moving around without apparent restriction. It shows him without any evidence of functional limitation or discomfort and conducting himself the next day without apparent limitation.

About three weeks later, on November 11, 2009⁸, Mr. Gallo was telling his occupational therapist, Mr. Lowe that he has started to walk two to three times per week for approximately 15 minutes before having to sit due to pain and fatigue and was becoming a little more socially active by going out for coffee once in a while.

Similarly, according to Dr. Magliocco’s March 11, 2010 FAE report, on the Low Back Disability Index questionnaire, Mr. Gallo indicated that he was able to stand and sit for 10 minutes each. He was observed during functional testing, meanwhile, to stand for 27 minutes continuously and to sit for 21 minutes continuously.

Retraining

Although Mr. Gallo testified that he wants CUMIS to fund retraining, no request for vocational training was in evidence. He undertook his own vocational assessment which was not put into evidence.

The criteria in the Schedule for the post-104 week test speak to an insured person’s ability to work in employment to which he is suited by way of training, education or experience. In his past, Mr. Gallo tried a number of career paths before he settled on auto body work. I find that his focus is more on finding a new career that he might better enjoy and not on returning to any of his pre-accident employment that he is reasonably suited to do.

I find that an insurer is not responsible under the Schedule to retrain an insured person if there is no further entitlement to post-104 week IRBs, or where the insured person already has experience and training in work that he is not prevented from engaging in by reason of accident-related impairments.

In any event, despite Mr. Gallo’s testimony that he would like to investigate a career as an insurance adjuster or mortgage broker, he told his occupational therapist, Julie Geronimo, that he was not ready to engage in retraining efforts until at least after surgery to address his hip injury. Ms. Geronimo wrote in her April 8, 2013 report that “Mr. Gallo prefers to put on hold taking any courses at this time. He advised that he plans to book the surgery [for his hip] as there is a 9-month waiting list.”

The hip surgery is wholly unrelated to the 2008 accident.

Mr. Gallo, again with the assistance of Dr. Dywan, also investigated a Second Career option at Mohawk College, a program designed to help individuals retrain for new careers. Although he testified that he would qualify, his evidence was that he could only participate if “my doctor” agreed to a “medical release” and that he would have to be “ready for work today”, which Mr. Gallo testified was not the case for him.

Dr. Dywan testified that by 2012 Mr. Gallo was not ready to work because of the severity of Mr. Gallo’s depression, although in 2010 Mr. Gallo was telling Dr. Blackstock that he was “psychologically O.K.” to return to work.

With respect to “his doctor’s” opinion on Mr. Gallo’s suitability for the program, Dr. Toffolo’s (the family doctor) records for the period after the 2008 accident were not put before me, and I have no evidence what, if any conclusions, opinion, diagnoses his family doctor made about any of Mr. Gallo’s ongoing complaints or limitations beyond asking Dr. Dywan early on to assist Mr. Gallo with a return to work.

Mr. Gallo made a failed four-hour attempt to mind the cash register at his brother’s water supply business, and Dr. Dywan testified that Mr. Gallo’s depression was too severe to endure a full day’s work. That effort, however, followed the 2010 accident. In Ms. Geronimo’s April 8, 2013 occupational therapy follow-up report, she wrote that Mr. Gallo did some informal volunteering at the brother’s water supply business but that he had difficulty concentrating and staying focused due to pain and that Mr. Gallo discussed his hip pain during their assessment. In view of his evidence of psychological improvement before the 2010 accident, I find that Mr. Gallo’s effort was cut short not because of pain associated with the 2008 accident but because of preoccupation with pain and his decline after December 7, 2010.

Dr. Fulton’s neuropsychological assessment

I find that Dr. Fulton’s neuropsychological assessment that took place over two days in December 2010 confirms that Mr. Gallo was attributing impairments to the 2008 accident that were caused by the 2010 accident.

Mr. Gallo first met with Dr. Fulton on December 9, 2010 at the request of his counsel. The visit took place just two days after the December 7, 2010 accident. I have given Dr. Fulton’s conclusions regarding Mr. Gallo’s prognosis following the 2008 accident little weight because of Mr. Gallo’s failure to disclose the 2010 accident that occurred just two days before they met. I find that Mr. Gallo failed to give Dr. Fulton the opportunity to make an informed conclusion about limitations to his function caused by the 2008 accident when he failed to tell him that he had just been involved in a more serious accident.

During the December 9, 2010 evaluation, Mr. Gallo complained of increasing pain in his eyes, neck, shoulders, low back and left leg. He took Tylenol-3 and the decision was made to stop testing on that day and continue on December 27, 2010.

Based on Mr. Gallo’s self-report, Dr. Fulton associated new symptoms with the 2008 accident that were not mentioned in any of the pre-2010 accident reports or records in evidence. His January 31, 2011 report contains the first record of symptoms such as visual disturbances and seizure-like episodes. He notes complaints of dizziness and poor balance that were absent for more than a year. There is also no record of a prescription for Tylenol-3 following the 2008 accident but Dr. Fulton listed it under medications. Mr. Gallo also told Dr. Fulton that his headaches were present almost all the time, when he had told previous assessors that they had plateaued in early 2010 and had reduced in frequency to three times per week.

I find the December 9, 2010 visit with Dr. Fulton was an obvious time for Mr. Gallo to disclose that he had just been in a different accident especially since he was consistently reporting improvement after the 2008 accident but struggled with pain immediately after the December 2010 collision.

Notwithstanding this critical omission, and despite Mr. Gallo’s complaints of pain, Dr. Fulton nevertheless described Mr. Gallo’s 2008 head injury as “mild at the very worst” and “minor”.

Diagnostic tests

Mr. Gallo’s x-rays and diagnostic tests were normal. After the accident, his family doctor, Dr. Toffolo, sent Mr. Gallo for an x-ray of his head which was normal. Dr. Toffolo sent him to neurologist Dr. Gianmarco regarding his ongoing difficulty with neck pain and associated headache, low back pain and the tingling sensation affecting his left arm and leg.

Dr. Gianmarco sent Mr. Gallo for an MRI of his cervical spine which showed no abnormalities except for an osteochondral bar causing narrowing of the left neural foramen at the C6-7 level. Dr. Gianmarco also did EMG studies of the left arm and left leg which showed no evidence of nerve root injury. As I already noted, Dr. McComas concluded from review of Mr. Gallo’s EMG that his complaints of numbness could not be explained by his injuries, that symptoms Mr. Gallo complained of as a barrier to work was not related to the EMG findings.

Dr. Derby, the neurologist who conducted an insurer’s assessment, could identify no abnormal findings on neurological examination of Mr. Gallo.

Dr. Dywan

I find Mr. Gallo’s psychologist, Dr. Dywan, although well-meaning, blurred the lines between impairments caused by the first and second accidents when he placed undue emphasis on Mr. Gallo’s reported symptoms and history. While the distinction may be less critical for the goals of Mr. Gallo’s treatment, it is important to the tests for entitlement set out in the Schedule.

Dr. Dywan also testified that Mr. Gallo complained of a weight loss of 18 pounds that both he and Dr. Dywan attributed to the accident. But according to the limited references to Dr. Toffolo’s records before me, Mr. Gallo’s weight was at its lowest just two days after the accident and slowly returned to normal afterwards.

Dr. Dywan administered the same tests to Mr. Gallo as did Dr. Blackstock. Both he and Dr. Blackstock found that Mr. Gallo scored in the severe range for depression and anxiety, but Dr. Blackstock opined that Mr. Gallo had not been entirely truthful. Dr. Dywan testified that Mr. Gallo endorsed a number of symptoms related to the accident, including a severe preoccupation with worry, cognitive dullness, forgetfulness, increased clumsiness, dizziness, and insecurity with dating that was associated with the feeling that he would have little to offer a relationship if he was not actively working. Dr. Dywan acknowledged on cross-examination that he put more weight on observations of Mr. Gallo’s behaviour and on what Mr. Gallo had been reporting during sessions than in his test results.

In his June 26, 2012 report, Dr. Dywan described that Mr. Gallo had “anxiety associated with uncertainty regarding the diagnosis and treatment of his hip, which was injured during the MVA.” Meanwhile, Dr. Dywan began his report stating that “Mr. Gallo presented for neuropsychological assessment and treatment of problems from an MVA of December 8, 2008.” I find that this was simply inaccurate. There are additional items in Dr. Dywan’s report, such as reference to passive suicidality that only appear after the second accident.

As a result, and because of the inconsistencies I heard in Mr. Gallo’s own evidence, I give Dr. Blackstock’s conclusions more weight. I also find Dr. Blackstock was sufficiently objective to recognize that despite invalidities and exaggerations in Mr. Gallo’s test scores, he was not unwilling to say that there was nothing wrong with Mr. Gallo.

Housekeeping and Home Maintenance Benefits

CUMIS paid Mr. Gallo housekeeping and home maintenance benefits up to October 20, 2010. Mr. Gallo is seeking housekeeping and home maintenance benefits from October 20, 2010 to December 7, 2010.

For the following reasons I find that Mr. Gallo has not proved that he was substantially unable to perform his pre-accident housekeeping and home maintenance tasks after October 20, 2010.

Mr. Gallo made representations to insurer assessors about improvements in his ability to perform the majority of his housekeeping tasks. When Mr. Gallo met with Dr. Blackstock in May 2010, Mr. Gallo reported that “he can now do a lot of the housekeeping, but it takes longer than usual”.

Dr. Blackstock opined that, from a psychological perspective, Mr. Gallo did not have a substantial inability to perform his pre-accident housekeeping and home maintenance activities and that it would be psychologically beneficial for Mr. Gallo to continue to do as much of his pre-accident housework as he physically could.

Drs. Blackstock, Derby and Porte all concluded that, from a psychological, neurological, and orthopaedic perspective, respectively, Mr. Gallo did not suffer a substantial inability to perform his pre-accident housekeeping and home maintenance activities.

Dr. Porte wrote (in his July 13, 2010 report) that Mr. Gallo described doing the majority of the home maintenance including snow removal and lawn care, and that, with the accommodation of breaking up his tasks, such as pacing and avoiding heavy lifting, Mr. Gallo was able to do the home maintenance tasks and was therefore not considered to suffer a substantial inability to perform his pre-accident housekeeping tasks.

Dr. Porte acknowledged Mr. Gallo’s reports of persistent pain at the time of the July 2010 orthopaedic assessment. However, he concluded that there was no indication that Mr. Gallo would risk experiencing substantial harm should he return to doing his housekeeping activities and that his current abilities indicated that he could do so.

Based on Mr. Gallo’s reports to CUMIS’ assessors that he was doing most of his pre-accident housework, I find that he is not entitled to further housekeeping and home maintenance benefits.

OCF-18 for psychological treatment

As Mr. Gallo’s treating psychologist, Dr. Dywan made recommendations for continued psychological treatment to address Mr. Gallo’s post-accident symptoms. I have to decide if the proposed treatment is reasonable for treating impairments sustained as result of the 2008 accident. I find that it is not.

In his report dated June 26, 2012, Dr. Dywan submitted a request for approval of at least 17 additional sessions of 1.5 hours each of direct individual psychological treatment totaling $5,371.70. CUMIS partially approved this treatment plan in the amount of $2,305.60 based on Dr. Blackstock’s report dated August 29, 2012 which recommended a reduction in the number and duration of the sessions to 12 sessions, each lasting one hour.

I am not persuaded that the treatment is reasonable and necessary for impairments arising from the first accident. I find that the June 26, 2012 report identifies barriers that now arise predominantly from the second accident. Dr. Dywan described that Mr. Gallo had “anxiety associated with uncertainty regarding the diagnosis and treatment of his hip, which was injured during the MVA.” He discussed Mr. Gallo’s concerns about the hip surgery and his phobic reaction to the needle used to inject contrast before an MRI of the hip. References to suicidality, anti-depressants and the hip trauma followed the second accident.

I find that the distinction, while it may have been less important from a treatment standpoint, is important for the purposes of entitlement under the Schedule.

Finally, when Mr. Gallo met with Dr. Kumbhare, a physiatrist, for a medical-legal assessment at the request of his counsel on March 19, 2012, he told Dr. Kumbhare about his mood, and that he was feeling better following the first accident but worse after the second.

As a result, I find that the treatment proposed by Dr. Dywan in June 2012 deals primarily with the degradation of Mr. Gallo’s condition following the 2010 accident and associated concerns. I do not find it reasonable or necessary as it does not materially address impairments caused by the 2008 accident.

Conclusion

I find that Mr. Gallo has not met his burden of proving that he is completely unable to engage in any employment for which he is reasonably suited by education, training, or experience. I find that Mr. Gallo’s evidence was not credible on significant points, and that he gave no meaningful consideration to employment for work he for which he was reasonably suited by education, training or experience. Mr. Gallo has the burden of proving that he meets the test. In the circumstances of this case, I find that Mr. Gallo was not completely unable to pursue employment in car sales because of impairments caused by the 2008 accident. He gave no evidence that he sought funding from CUMIS for other vocations, and even if he had, I find that he was prepared to delay any vocational pursuits until after the hip surgery – an impairment wholly unrelated to the 2008 accident. I find that Mr. Gallo’s return to work was complicated at the 104-week mark not by impairments suffered in the 2008 accident, but by complications as a result of the 2010 accident.

For the above-noted reasons, the application for arbitration is dismissed.

September 12, 2014

Jessica Kowalski Arbitrator

Date

Financial Services Commission of Ontario