Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 261

FSCO A12-004133

BETWEEN:

MANSOOR AMIRI

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

*Minor error on pg. 25 corrected on December 21, 2015 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Susan Sapin

Heard: July 14, 2014, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Andrew Suboch and for Mr. Amiri

Seth Kornblum for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mansoor Amiri, was injured in a motor vehicle accident on January 4, 2010. At the time, he was a 54-year-old chemical engineer employed full time at the petrochemical company where he had worked for 11 years since immigrating to Canada from Iran. After the accident, Wawanesa Mutual Insurance Company (“Wawanesa”), paid certain statutory accident benefits under the Schedule,¹ but later terminated those benefits on the grounds that there was insufficient objective medical evidence that Mr. Amiri continued to qualify for them.

Mr. Amiri claims he suffered catastrophic impairments as a result of the accident, which entitle him to claim housekeeping/home maintenance and attendant care benefits beyond two years after the accident. He claims ongoing income replacement benefits on the basis that his impairments prevent him from returning to employment of any kind.

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

The parties agreed that the issues in this hearing are:²

1. Did Mr. Amiri suffer a catastrophic impairment under s. 2(1.2)(g) of the Schedule, as a result of the accident?

2. Is Mr. Amiri entitled to an income replacement benefit (IRB) of $79.80 per week from September 4, 2012 and ongoing?

3. Is Mr. Amiri entitled to attendant care benefits under s. 16 of the Schedule, as follows:

a. From March 2, 2010 to February 3, 2011 at the rate of $2,311.30 per month;

b. From February 3, 2011 to December 31, 2011 at the rate of $3,000 per month;

c. From January 1, 2012 and ongoing at the rate of $6,000 per month.

4. Is Mr. Amiri entitled to housekeeping and home maintenance expenses under s. 22 of the Schedule:

a. From March 2011 to December 31, 2011? If so, the parties agree that the amount payable is $2,500 exclusive of interest and/or costs;

b. From January 1, 2012 ongoing at the rate of $100 per week, if it is determined that he has suffered a catastrophic impairment as a result of the accident.

5. Is Mr. Amiri entitled to $1,950.63 for the cost of a Chronic Pain Assessment dated December 6, 2010 by Dr. Rod at the Toronto Poly Clinic, under s. 24 of the Schedule?

6. Is Mr. Amiri entitled to interest for the overdue payment of benefits under the Schedule?

7. Is either party entitled to its expenses of the arbitration proceeding?

Result:

1. Mr. Amiri suffered a catastrophic impairment under s. 2(1.2)(g) of the Schedule, with a marked impairment in adaptation.

2. Mr. Amiri is entitled to an income replacement benefit (IRB) of $79.80 per week from September 4, 2012 and ongoing.

3. Mr. Amiri is entitled to attendant care benefits of $824.45 per month from February 3, 2011 and ongoing.

4. Mr. Amiri is entitled to housekeeping and home maintenance expenses under s. 22 of the Schedule:

a. From March 2011 to December 31, 2011, in the amount of $2,500 exclusive of interest and/or costs;

b. From January 1, 2012 ongoing at the rate of $100 per week.

5. Mr. Amiri is entitled to $1,950.63 for the cost of a Chronic Pain Assessment dated December 6, 2010 by Dr. Rod at the Toronto Poly Clinic.

6. Mr. Amiri is entitled to interest in the overdue amounts under the Schedule.

7. Mr, Amiri is entitled to his reasonable expenses of this arbitration proceeding.

EVIDENCE AND ANALYSIS:

Introduction:

Mr. Amiri claims he suffers from ongoing chronic pain, depression, anxiety, post-traumatic stress and other psychological symptoms as a result of the accident that are severe enough to qualify as a catastrophic psychological impairment under s. 2(1.2)(g) of the Schedule: “ . . . an impairment that, . . . in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (“the Guides”) results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to a mental or behavioural disorder.”³

Wawanesa conducted a multidisciplinary assessment (“CAT assessment”) to determine whether Mr. Amiri’s impairments qualified as catastrophic in March and April 2012, just over two years after the accident, and concluded that they did not. Wawanesa’s conclusion rests largely on the report of its psychiatric assessor, Dr. Brian Hines, who found only Class 2 mild impairments in each of the four functional categories identified in the Guides, based on his DSM-IV⁴ diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood.

This contrasts with a January 27, 2012 Psychiatric Catastrophic Evaluation report by Dr. Abbas Azadian, Mr. Amiri’s treating psychiatrist, who rated Mr. Amiri as markedly impaired in three categories – ADLs; concentration, persistence and pace; and adaptation. Dr. Azadian found moderate impairment in social function. His diagnosis was a Major Depressive Disorder with psychotic features, and a Pain Disorder Associated with both Psychological Factors and a General Medical Condition, both due to the accident.⁵

Simply put, Wawanesa does not accept that Mr. Amiri’s psychological symptoms and subjective experience of pain equate to the levels of disability required to meet the tests under the Schedule.

Mr. Amiri claims his pain is worse now than after the accident, and although he acknowledged that his daily functioning is improved with medication, he feels it is still markedly limited due to chronic pain, dizziness and balance issues, depression, anxiety, irritability and difficulties with concentration and memory.

Mr. Amiri is a Credible Witness

Wawanesa does not dispute that Mr. Amiri continues to suffer physical and psychological sequelae to the accident. Its position is that Mr. Amiri presented himself to its assessors as more impaired than he actually was, and so their opinions are not reliable. Wawanesa submits that, although Mr. Amiri’s testimony was “helpful . . . and for the most part truthful,” his display of good recall and memory at the hearing, especially regarding specific details about his employment, doctor’s visits and many medications, belied his claims that he suffered from serious concentration, focus and memory issues. According to Wawanesa, this undermined Mr. Amiri’s credibility, and his claim that his impairments are catastrophic. Wawanesa submits Mr. Amiri’s testimony about the extent of his impairments should not be believed. It further maintains Mr. Amiri’s medical condition has improved since the accident due to his positive response to medication, and so his impairments cannot be considered severe enough to justify either a finding of catastrophic impairment, or a finding that he is unable to return to work of any kind.

Regarding credibility I note, and the transcript will confirm, that counsel’s examination-in-chief of Mr. Amiri was directive, with many leading questions (to which counsel for Wawanesa did not object). My impression was that Mr. Amiri tired visibly during the proceedings, and often simply endorsed propositions put to him by counsel, particularly towards the end of the day. On cross-examination, his response to an inordinate number of questions, in particular about pre‑accident absences from work, was “I don’t remember,” or “I don’t know.” He often had to ask for relatively straightforward questions to be repeated. This was not a language issue. Mr. Amiri appeared to have genuine difficulty remembering details and processing some questions. I reject Wawanesa’s suggestion that Mr. Amiri’s almost total lack of recall of the details of pre-accident absences from work due to various ailments should be viewed as evasive or even disingenuous. In this case, I find Mr. Amiri’s presentation at the hearing was due to mental fatigue due to repetitive, detailed questioning, as well as his own genuine conviction that his accident injuries, and not his previous illnesses, have prevented him from returning to his employment.

In that respect, I find the evidence bears him out. His employment file and the notes of his family doctor indicate his absences from work were due to the types of garden-variety illnesses that affect most people at some time or another – colds, sore throat, bronchitis, occasional back pain, a hernia operation. In Mr. Amiri’s case, some absences were due to his pre-existing asthma, which flared up in cold weather. Mr. Amiri did not deny that he had pre-existing health issues, including diabetes. There is nothing in the records of Mr. Amiri’s employer or his family doctor to indicate that he was unable to continue working, or that his employment of eleven years was in any way jeopardized by his pre-accident absences due to illness.

In any event, I reject Wawanesa’s suggestion that Mr. Amiri’s presentation at the hearing should be taken as evidence that he is not as mentally impaired as he claims to be, and therefore does not meet the test for catastrophic impairment. Whether he meets the test must be decided on the medical and lay evidence available at the time he was assessed for catastrophic impairment, in early 2012.

Furthermore, I find Mr. Amiri’s adverse reaction to his motor vehicle accident, and the intractability of his symptoms, are explained in part by factors identified early on by Wawanesa’s own assessors, Cindi Goodfield, psychologist,⁶ and Dr. Curt West, neuro- and clinical psychologist,⁷ who both felt he was predisposed to develop mental health symptomatology following the motor vehicle accident. I note that these assessors also took the trouble to point out that despite Mr. Amiri’s poor performance on validity tests that indicated he tended to magnify his symptoms, they believed this tendency was not intentional, and was more likely a “cry for help” than a deliberate attempt to mislead or malinger.

And finally, I find Wawanesa’s assessors did not adequately take into account Mr. Amiri’s complaints of chronic pain, which, by definition, is pain that persists for six months or more which originates in injury but may no longer be caused by it. It is well established that persons suffering from chronic pain can be caught in a vicious self-reinforcing cycle of anxiety, depression and pain which gets worse the longer their normal life remains disrupted by their symptoms:

Pain resulting from physical injury, illness or disease is a multidimensional phenomenon composed of physiologic, psychological, and other influencing variables. Factors such as depression, anxiety, and excessive somatic thought are specifically identified in the medical literature as actively contributing to the etiology, maintenance, and intensity of pain. When these factors are appropriately identified and clinically addressed, treatment outcomes resulting from nonsurgical, surgical, and rehabilitative interventions are significantly improved.⁸

I find Mr. Amiri’s testimony to be reasonably consistent with the evidence as a whole, and therefore sufficiently reliable to support a finding that he meets the criteria for catastrophic impairment as well as the disability test to qualify for IRBs beyond 104 weeks. I find Mr. Amiri has established, on a balance of probabilities, that he suffered a marked impairment in the category of adaptation as a result of the accident. I further find that Mr. Amiri meets the test for IRBs beyond 104 weeks, in that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

I was not persuaded however, that Mr. Amiri required the level of attendant care he claimed.

CATASTROPHIC IMPAIRMENT

In Pastore v. Aviva Canada Inc.⁹, the Court of Appeal described the three-stage process mandated in Chapter 14 of the Guides that assessors use to evaluate catastrophic impairment due to a mental disorder:

1. Diagnose a mental disorder;

2. Assess the impact on daily life in four categories of function;

3. Assess the severity of the limitations against five levels of dysfunction

The four overlapping categories of functioning are: activities of daily living (“ADLs”); social functioning; concentration, persistence and pace; and deterioration or decompensation in work-like settings, sometimes referred to as “adaptation”). The five levels of impairment in each of the four categories increase in severity from Class 1 (no impairment) to Class 5 (extreme impairment).

A finding of a Class 4 “marked” or Class 5 “extreme” impairment in any one of the four categories of function is sufficient to establish catastrophic impairment.¹⁰ An insured person determined to be catastrophic is entitled to apply for enhanced housekeeping, attendant care and medical benefits.

Diagnosis:

As noted, the first step in evaluating catastrophic impairment due to a mental or behavioural disorder is for the evaluator to make a diagnosis. The key reports are those of Dr. Hines and Dr. Azadian, who conducted the catastrophic impairment evaluations and provided diagnoses under the DSM-IV.¹¹ I find Dr. Hines, who only met with Mr. Amiri once, underrated his mental condition, partly because he did not accept Mr. Amiri’s pain complaints as genuine, and partly because he did not have updated medical information from Dr. Azadian.

As noted, Dr. Hines found only Class 2 mild impairments in each of the four functional categories, based on his diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, of a mild degree associated with his reported pain, in March 2012.

In January 2012, Dr. Azadian, Mr. Amiri’s treating psychiatrist, rated Mr. Amiri as markedly impaired in three categories — ADLs, concentration, persistence and pace, and adaptation; and moderately impaired in social function, based on his diagnosis of Major Depressive Disorder with psychotic features, and a Pain Disorder associated with both Psychological Factors and a General Medical Condition, both due to the accident.¹² According to the DSM-IV, this category of pain disorder is considered a mental disorder.

I prefer Dr. Azadian’s diagnosis of a more severe mental disorder because I find it more accurately captures the array of psychological and physical symptoms reported by Mr. Amiri and more accurately reflects the psychological impact of the accident, which I find was significant.

According to Mr. Amiri, the accident occurred around 7 pm in the evening of January 4, 2010 as he was driving home from his job as a petrochemical engineer at Chemtura, an affiliate of Petro-Canada. He T-boned a vehicle attempting to make a left turn. The airbags in both vehicles deployed. Mr. Amiri described the impact as severe. He is adamant he hit his head against the headrest and lost consciousness, although he was unable to recall for how long, and regained consciousness shocked and scared, and was helped from the vehicle by emergency personnel. The police told him to report to a collision centre, and his 16-year old vehicle was towed away, and eventually written off.

There is no evidence to corroborate Mr. Amiri’s claim that he hit his head or was unconscious, but I find he was, at the very least, dazed. Mr. Amiri recounted he was unable to sleep that night, his whole body was in pain, and as he could not move or walk the next day his family doctor, Dr. Thomas Tam, gave him an emergency appointment at 11:00 a.m. Mr. Amiri stated Dr. Tam told him he should see a physiotherapist and a psychiatrist right away. Mr. Amiri first saw Dr. Azadian, a Farsi-speaking psychiatrist a few days later on January 17.¹³ Dr. Azadian has treated him since that time, seeing him every two to five weeks.

I find Mr. Amiri has complained consistently of, and sought treatment for, his symptoms since the accident. At the hearing, Mr. Amiri endorsed two written accounts of his symptoms and injuries dated January 12, 2010, eight days after the accident, and November 16, 2011, some 20 months later.¹⁴ Except for two insignificant phrases, the accounts are virtually identical, and Mr. Amiri testified his symptoms did not really improve despite almost two years of physiotherapy and psychiatric treatment with an array of medications and some counselling.

The symptoms are: whole body pain, stiffness, weakness and fatigue; lower back pain radiating to legs, neck pain radiating into arms and hands, more so on the left; dizziness, loss of balance, blurry vision, eye pain, difficulty hearing and buzzing in the ears, aggravated pre–existing asthma, poor appetite, sleep disturbance and nightmares; difficulty standing, walking and sitting; difficulty concentrating, forgetfulness and distractibility; and constant worry, anxiety, panic and feelings of guilt for not being able to take care of himself and his family or return to pre-accident activities such as work, personal care and housekeeping.

Mr. Amiri also stated that he gets angry easily and fights with family members, and that he has irrational fears, such as someone coming to his house to kill him and his family. He is afraid to stay at home alone, or even to open the door. This evidence was corroborated by the testimony of his wife, Azarakhsh Teymourzadeh.

Dr. Azadian prepared two reports on behalf of Mr. Amiri two years apart, January 25, 2010 and January 27, 2012. His clinical impression in 2012, two years after the accident, was that Mr. Amiri’s inability to return to work, his marked reduction in his level of activity, his irrational fears, and his dependency on his family for care and for his activities of daily living had caused a significant level of depression and anxiety and a sense of helplessness and guilt that had worsened over time, in spite of medication and psychotherapy. His report describes Mr. Amiri’s symptoms and limitations in activities of daily life in detail.

This contrasts with Dr. Hines’ March 2012 report, where Dr. Hines noted similar symptoms and limitations reported by Mr. Amiri but questioned the veracity of Mr. Amiri’s subjective reports and his presentation during the assessment. He emphasized the previous psychological testing done by Ms. Goodfield and Mr. West, which revealed “significant validity issues with respect to over reporting of his symptoms.”¹⁵ I find Dr. Hines discounted what Mr. Amiri told him on that basis, and underrated the severity of his psychological condition in diagnosing only a mild Adjustment Disorder with Mixed Anxiety and Depression.

A major weakness of Dr. Hines’ diagnosis and opinion is that he was missing a key piece of information – Dr. Azadian’s January 27, 2012 report. Dr. Hines’ report indicates he only reviewed and referred to Dr. Azadian’s first January 25, 2010 report, prepared two weeks after the accident, and two years before Dr. Hines’ assessed Mr. Amiri. Dr. Azadian’s more recent 2012 report contained a diagnosis of Major Depressive Disorder that included psychotic features, taking into account Mr. Amiri’s irrational fears. I find this lack of information further caused Dr. Hines to underrate Mr. Amiri’s depression and anxiety.

Having only Dr. Azadian’s 2010 report, Dr. Hines assumed that Dr. Azadian was “content with [Mr. Amiri’s] response to medication” because there were no reported changes in the year and a half since that report. However, in his January 2012 report, Dr. Azadian specifically noted that he had to make changes to Mr. Amiri’s medications, and that even though Mr. Amiri’s response to medication was poor, Mr. Amiri would need medications for a long time, and at high doses in combination. A note of Dr. Azadian’s, dated August 20, 2010, also indicates Mr. Amiri struggled with many emotional and physical symptoms as well as the side-effects of medication. Mr. Amiri confirmed this in his testimony.

I find Dr. Hines’ diagnosis lacked supporting detail and did not adhere as closely to the diagnostic model and criteria recommended by the DSM-IV compared to that of Dr. Azadian.

The DSM-IV advocates a multiaxial system intended to promote a “biopsychosocial” assessment model that captures the complexity of mental disorders by including information about contributing factors such as general medical conditions, psychosocial and environmental problems, and level of functioning that may underlie a presenting problem – in short, a “wholistic” approach to mental disorders. I find Dr. Hines’ reluctance to consider the broader picture caused him to underrate the consequences of the accident to Mr. Amiri.

Unlike Dr. Hines, Dr. Azadian in his report included a description of the factors that informed his diagnosis under each Axis. For example, under Axis III, Dr. Azadian identified the general medical condition affecting Mr. Amiri’s diagnosis (Major Depressive Disorder with psychotic features and a Pain Disorder etc.) as pain in the neck, back shoulder, leg, spine and hand, and frequent headaches. Dr. Hines, in contrast, did not include any factors under Axis III, instead deferring to the physical medicine component of the CAT IE. This would have been the orthopaedic report of Dr. O. Safir, to which Dr. Hines did not refer anywhere in his own report. The consequence is that an important factor affecting Mr. Amiri’s psychological condition – the impact of pain on his depression and anxiety – is not accounted for by Dr. Hines in considering the severity of his condition.

As a further example of the relative weakness of Dr. Hines’ diagnosis compared to that of Dr. Azadian is that under AXIS IV, intended to report psychosocial and environmental problems that may affect the diagnosis, treatment and prognosis of psychiatric disorders, Dr. Hines noted only “reported physical pain,” whereas Dr. Azadian was more accurate and in-depth, identifying “inadequate social support, limited understanding of the impact of the need to adjust his coping system, and unable to go back to work” as factors that would affect the treatment and prognosis. I find these factors also affect the severity and intractability of Mr. Amiri’s medical condition.

Dr. Azadian’s opinion, that Mr. Amiri’s depression was more severe than Dr. Hines thought, reflects that of Wawanesa’s own psychological assessor, Cindi Goodfield, who concluded a year earlier that Mr. Amiri’s mood was significantly compromised, to the extent that he met the test of substantial disability for both entitlement to housekeeping and income replacement benefits.¹⁶

Neither Dr. Hines nor Dr. Azadian themselves conducted any objective psychometric testing. Instead, Dr. Hines relied on the results of tests administered by Cindi Goodfield, psychologist, and Curt West, neuropsychologist, in January and March of 2011. I find Dr. Hines’ acceptance of the test results at face value, while ignoring the explanations offered by Ms. Goodfield and Dr. West, again caused him to underrate Mr. Amiri’s condition.

Ms. Goodfield obtained invalid results on one test, and an elevated score on a second test which indicated that Mr. Amiri’s endorsement of symptoms represented a “dramatizing response style.” Ms. Goodfield felt, however, that in Mr. Amiri’s case, the results likely represented a “cry for help.” Mr. Amiri’s poor performance on validity tests did not affect Ms. Goodfield’s opinion that his mood was significantly compromised.

Mr. West administered additional tests, including the BBHI-2¹⁷ and the Specific Measure for the Identification/Detection of Malingering. The results were quite extreme and suggested “a high likelihood of potential feigning/symptom exaggeration.” Nevertheless, regarding both tests, Mr. West emphasized that he was “. . . not necessarily implying any conscious or deliberate attempt at symptom exaggeration/amplification on Mr. Amiri’s behalf.”¹⁸ Regarding the Pain Patient Profile P-3 test, Mr. West noted the test was invalidated “due to extreme symptom exaggeration not necessarily intentional” [emphasis added].¹⁹

In his report, Mr. West explained what the test results meant:

Persons with a profile such as this may feel overwhelmed by problems in their life, and they tend to be very concerned about their pain and focused on seeking pain relief. They tend to see themselves as totally disabled with respect to work and managing their activities of daily living. They may also be trying to impress upon others the seriousness of their circumstances, and they likely wish that someone would help them.²⁰

In light of the evidence as a whole, I find this depiction of Mr. Amiri to be accurate. I further find this explanation does not make Mr. Amiri’s subjective experience of pain any less genuine.

Having concluded that Dr. Azadian’s diagnosis more accurately captured the extent and severity of Mr. Amiri’s mental disorder, the next steps in the three-step process are to assess the impact of Mr. Amiri’s mental and behavioural impairments on his ability to function.

Impact on Daily Life and Severity of Limitations:

The following chart from the Guides describes the five levels of impairment in each of the four categories of function:

Classification of Impairments Due to Mental and Behavioral Disorders²¹

Area or aspect of functioning

Class 1: No impairment

Class 2: Mild impairment

Class 3: Moderate impairment

Class 4: Marked impairment

Class 5: Extreme impairment

Activities of daily living Social functioning Concentration Adaption

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all, useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

With respect to mental and behavioural impairments, the emphasis is the extent of their impact on a person’s useful functioning in each of the four categories. ²² With Activities of Daily Living, for example, useful function would be measured by a person’s ability to look after their personal care and complete every day household tasks; in a work setting, useful function means the ability to complete work tasks in a timely manner and interact appropriately with supervisors and co-workers, among other factors.

As noted, I find that Mr. Amiri has a marked (Class IV) impairment in the category of “deterioration or decompensation in work or work-like settings,” also referred to as “adaptation.”

The Guides’ description of the “adaptation” category reads as follows:

Deterioration or decompensation in work or work-like settings refers to repeated failure to adapt to stressful circumstances. . . Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.²³

In this category, an assessor may consider the effect of the diagnosed mental impairment on the capacities of understanding and memory; sustained concentration and persistence; social interaction (ability to get along with co-workers, peers and supervisors); and adaptation — the ability to respond appropriately to changes in the work setting, set realistic goals, take precautions against hazards, use public transportation and travel to and from work.²⁴

It is evident from the Guides’ descriptions of each category that the categories overlap.

I find Mr. Amiri’s testimony, that of his wife Ms. Teymourzadeh, his daughter-in-law Karen Flores, and the medical evidence — particularly Dr. Azadian’s 2012 report - all indicate Mr. Amiri’s impairment levels significantly impede useful functioning in the category of adaptation.

I find all of these factors impair Mr. Amiri’s useful functioning to a significant degree in the category of adaptation, such that his impairment is marked:

• He is forgetful and cannot concentrate, even to watch a television programme or read;

• he is not motivated to leave his room; he wishes mostly to be left alone and cannot tolerate people;

• he has little stamina;

• he fights with his family and is restless, irritable and easily upset;

• he is afraid to be at home alone and has become dependent on his family, particularly his wife;

• he will not routinely attend to his personal hygiene on his own unless prompted and assisted;

• he is too afraid to drive and is an anxious and unwilling passenger;

• he is fearful of falling outside the home due to ongoing dizziness.;

• He is heavily medicated and suffers side-effects from the medication;

• He has no regular sleep-wake schedule;

• He is very focussed on his pain and his symptoms.

Despite psychotherapy, Dr. Azadian’s opinion is that Mr. Amiri has little insight into his condition and poor coping skills. His anxiety and depression are significant and his response to medication poor.

I find Mr. Amiri’s mental and physical condition is not compatible with useful or productive employment, either in his previous job as a Product Operator at Chemtura nor in any other job suitable to his age, experience, qualifications, skills or training. Mr. Amiri testified his job at Chemtura was to mix large batches of chemicals and read and record values on three different reactors on three different floors of the chemical plant, which involved a lot of walking, standing and climbing stairs. His employer confirmed this information.²⁵

Mr. Amiri’s uncontradicted evidence was that he had to lift bags of chemicals weighing 50 pounds several times a day.

Apart from the physical requirements, I find Mr. Amiri’s job requires mental effort, sustained concentration, attention to detail, making calculations and decisions, completing tasks, operating machinery, following instructions, interacting with supervisors and peers, and taking precautions against hazards. He must be able to do all these things in a sustained, useful and productive way. He must be able to get to and from work either by car or public transportation, and sustain regular attendance. I find his mental and behavioural impairments significantly impede the level of function required.

I reject Wawanesa’s submission that Dr. Azadian did not follow accepted Guides protocols because he failed to assess Mr. Amiri’s ability to function in a non-medicated state. There is insufficient evidence to support this proposition. The Guides require that “attention must be given to the effects of medication on the individual’s signs, symptoms, and ability to function.” It is the limitations that persist despite medication that should be measured, and account must also be taken of medication side-effects.²⁶ Dr. Azadian both prescribed Mr. Amiri’s medications and noted that Mr. Amiri did not tolerate them especially well and suffered from side-effects, which may have explained some of his symptoms of mental confusion, lethargy and dizziness.

Mr. Amiri’s testimony confirms this, and also that medication did not always provide consistent relief. I am satisfied that Dr. Azadian properly addressed the medication issue in light of the Guides and came to the correct conclusion.

Regarding the three remaining functional categories, based on the evidence before me, I find that Mr. Amiri’s impairment levels are compatible with some, but not all, useful functioning. This would properly place him at the moderately impaired level for those categories.

Mr. Amiri is Entitled to Attendant Care Benefits

A finding of catastrophic impairment does not automatically entitle a person to the enhanced attendant care benefits of up to $6,000 per month available under the Schedule. The insured person must still establish that the attendant care claimed beyond 104 weeks after the accident is reasonable and necessary. Section 39 of the Schedule requires that a person submit an application for the benefit in the form of an assessment of his attendant care needs prepared and submitted to the insurer by a health professional authorized by law to treat the person’s impairment. An insurer may, but is not required to, pay the benefit before it receives this assessment.

Dr. A. Khajavi, a chiropractor, submitted a Form 1 on Mr. Amiri’s behalf on January 13, 2010 recommending attendant care of 296.70 hours per month (69 hours per week), at a cost of $3,145.32 per month.²⁷ Wawanesa paid the $3,000 allowable maximum for the first month, and obtained its own in-home assessment by an occupational therapist (OT), Ms. D. Croucher. Ms. Croucher prepared a detailed report and a Form 1 dated February 11, 2010, and recommended 55.43 hours per month (12.89 hours per week), for $688.70 per month. Wawanesa paid attendant care benefits at this rate until February 3, 2011. It terminated attendant care on the basis of reports by Cindi Goodfield, psychologist, and Dr. F. Abuzgaya, orthopaedic surgeon, that Mr. Amiri did not require ongoing attendant care for either psychological or physical reasons.²⁸

Comparing the two Form 1’s, I find Ms. Croucher’s to be the more accurate, with some modifications.

It appears that for Level 1 care (routine personal care), Ms. Croucher allocated 493 minutes per week and Mr. Khajavi 3090. The reasons for the difference are two. First, Ms. Croucher did not allocate any time for assistance in dressing and undressing the upper and lower body, as she felt Mr. Amiri demonstrated he could do these tasks while seated and so did not require assistance. I find this reasonable. I heard no evidence to suggest that depression and chronic pain prevented Mr. Amiri from dressing himself in that manner, and I accept Dr. Abuzgaya’s evidence that there is no objective orthopaedic reason either. Second, Ms. Croucher calculated 3 minutes’ assistance per meal, or 63 minutes per week, whereas Dr. Khajavi recommended 840 minutes under the category “provides assistance, either in whole or in part, in preparing, serving and feeding meals.” As these tasks overlap with housekeeping tasks and there is no evidence Mr. Amiri is not capable of feeding himself, I find Dr. Khajavi’s amounts excessive.

Overall, I find Ms. Croucher’s figure of 493 minutes per week of Level 1 care to be more accurate.

Regarding Level 2 care, basic supervisory functions, I find Dr. Khajavi overestimated the need to clean up after Mr. Amiri — 60 minutes a day, 7 days a week in the bathroom, and 70 minutes a day in the bedroom. These tasks also overlap with housekeeping tasks. Under this category, Ms. Croucher allocated 35 minutes a week for making the bed and cleaning the bedroom, a more realistic figure that does not overlap with housekeeping. With regard to clothing assistance, I prefer Ms. Croucher’s 70 minutes over Dr. Khajavi’s 140 minutes, given that Mr. Amiri acknowledged that he was able, if not in pain and not dizzy, to pick out his own clothes, do some dressing and undressing, and put his clothes away, including folding them and putting them on a hanger, and prepare meals for himself.

For Level 3 care, which includes “complex health/care and hygiene functions,” Ms. Croucher allowed 20 minutes per day, 7 days a week, for Ms. Teymourzadeh to bathe and dry her husband, which I find reasonable, given Mr. Amiri’s evidence that he fell once in the shower due to dizziness. Dr. Khajavi did not assign any time under this heading.²⁹ Neither assessor allocated any time for administering or monitoring medication, or shaving, with which the Amiris testified Mrs. Teymourzadeh helped her husband. Mr. Amiri was reluctant to shave himself as he had cut himself in the past. He does not own an electric razor. Therefore I would add 15 minutes a day (7.55 hours per month) under Level 3 care for administering and monitoring medication. Based on the rates specified on Form 1 $135.75 for Level 3 care to Ms. Croucher’s $688.70, for a total monthly entitlement of $824.45.

I find Ms. Croucher’s reasons for the amount of attendant care she felt was necessary and reasonable to be persuasive. In her report, under the heading “Additional Behavioural Issues,” she noted: “Client’s wife and son were very hands on with the client during the assessment. Every time the client would move, his son and/or wife would provide assistance.”³⁰ She noted that Mr. Amiri displayed little effort on functional testing, declined to perform activities due to dizziness, and displayed less range of motion than had been found by his own chiropractor two weeks earlier. She concluded: “Mr. Amiri is strongly encouraged to resume personal care activities that can be completed from a seated position to facilitate recovery. The client’s family is encouraged to allow him to complete these personal care activities independently. The current amount of assistance the client reported receiving is detrimental to his recovery as it is preventing him from resuming tasks he is capable of performing.” [emphasis added].³¹

Ms. Croucher’s opinion is consistent with that of Dr. West, the neuropsychologist, who found Mr. Amiri’s psychological profile, as determined by testing, was to perceive himself as totally disabled and “if this level of disability is not consistent with objective medical findings, this patient may be drawn toward assuming a disabled role.”³²

In this case, expert opinion and the evidence suggest that Mr. Amiri, despite depression, chronic pain and the side effects of medication, can do more for himself in terms of self-care than he has been accustomed to doing, and that he should be encouraged to do so.³³ On that basis, I find Ms. Croucher’s assessment of the amount of attendant care Mr. Amiri reasonably requires to be the most accurate, with the minor adjustment noted above.

Mr. Amiri is entitled to Housekeeping/Home Maintenance Expenses

I accept the uncontradicted evidence of Mr. Amiri and his wife that they shared homemaking tasks equally before the accident. Mr. Amiri testified that he swept, dusted, vacuumed, cleaned the bathroom, washed floors, cleaned the oven and the fridge, ironed and shopped for groceries, and helped prepare food, while his wife cooked, made the beds and did the laundry. In addition, Mr. Amiri cut the grass, raked leaves, shovelled snow and took out the garbage. The couple’s three sons were in school and helped out if asked. Mr. Amiri testified that he worked 12-hour shifts at Chemtura, two days on, two days off, two nights on, and three days off. It amounted to 15 days on and 15 days off per month. He did his share of the housework on his days off. His wife worked part time at a hair salon.

In her report dated January 13, 2011, Ms. Goodfield found that, from a psychological point of view, although Mr. Amiri did not require attendant care, he was substantially disabled from carrying out his housekeeping tasks, on the basis that he suffered symptoms of Major Depressive Disorder and Posttraumatic Stress Disorder “to the degree and extent that he meets the criteria for disability, both employment, and housekeeping and home maintenance.”³⁴ I find Mr. Amiri has not significantly improved since then, and is entitled to ongoing housekeeping benefits.

The parties advised that if I find Mr. Amiri is entitled to housekeeping/home maintenance expenses from March 2011 up to December 31, 2011, they agree that the amount of the benefit is $2,500 for that period, exclusive of interest and/or costs. I find Mr. Amiri is entitled to that amount.

I also find that Mr. Amiri is entitled to the benefit from January 2012 and ongoing, at a rate of $100 per week, on the basis that he has suffered a catastrophic impairment as a result of the accident; his medical condition has not significantly improved; the assistance is reasonable and necessary; and that is the rate accepted by Wawanesa during the period it did pay the benefit.³⁵

Mr. Amiri is Entitled to Post-104 IRBs

Wawanesa does not dispute that Mr. Amiri met the test for entitlement to IRBs up to 104 weeks after the accident; i.e., that he was substantially unable to perform the essential tasks of his employment, and it paid IRBs on that basis up to September 3, 2012.³⁶

After 104 weeks, however, the test changes, and an insured person must establish that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.³⁷

In August, 2012, Wawanesa had Mr. Amiri undergo medical assessments by an orthopaedic surgeon, a neurologist, a psychologist, and a vocational assessor at Cira Medical Services to determine his post-104 week IRB entitlement. These specialists concluded he did not meet the test, each from the narrow perspective of his own specialty.

None of these specialists, except for the vocational assessor, discussed below, addressed Mr. Amiri’s pain complaints or the interrelationship between his psychological condition and his perception of pain, despite the fact that it was obvious from Mr. Amiri’s reports and the reports of other medical health practitioners such as Drs. Maistrelli and Rod³⁸, that Mr. Amiri had developed a chronic pain condition. This failure to address a key issue significantly weakens their opinions, as does the underlying assumption in Dr. O. Safir’s report, two years after the accident, that “the prognosis with respect to the initially sustained [soft tissue] injuries is good from an orthopaedic perspective.” This general statement of belief about what should happen does not accord with what actually happened in this case — Mr. Amiri deteriorated after the accident despite therapy and developed a debilitating chronic pain condition.

I find there is no employment for which Mr. Amiri is reasonably suited by education, training or experience.

I reject the opinion of the vocational assessor that “from a vocational perspective, Mr. Amiri was able to demonstrate skills and aptitudes that would be considered competitive for employment.” The assessor identified a single occupation — parking lot attendant — for which testing revealed Mr. Amiri had the transferable skills to perform. Although she noted that Mr. Amiri’s test results were low given his work experience and the fact that he had the equivalent of a master’s degree, she acknowledged that pain and concentration issues may have played a role. Nevertheless, she concluded that, because the job of parking lot attendant fell within the Limited or Sedentary category, which would “allow him to sit and stand as he feels is necessary,” he would not meet the test for ongoing IRBs. That parking lot attendant hardly qualifies as a job for which Mr. Amiri would be reasonably suited by reason of education, training or experience would not even deserve comment, except for the fact that Wawanesa relies on these findings to defeat Mr. Amiri’s claim for IRBs. Needless to say, this is an unreasonable position.

My findings and reasons supporting my conclusion that Mr. Amiri suffered a marked impairment in the functional area of adaptation, apply equally to the issue of his entitlement to ongoing IRBs because, in this case, his marked impairment renders him completely unable to engage in any employment for which he is reasonably suited by education, training or experience, and I find he is entitled on that basis.

Mr. Amiri is Entitled to the Cost of a Chronic Pain Assessment Dated December 6, 2010 by Dr. Rod at the Toronto Poly Clinic

Dr. Rod submitted a Treatment and Assessment Plan dated November 22, 2010 on Mr. Amiri’s behalf, for a chronic pain assessment. Wawanesa referred the Plan to Dr. S. Levy, a general practitioner, for a paper review.³⁹ Dr. Levy concluded the assessment was not reasonable or necessary. His reasons appear to have been:

• The assessment was redundant, considering the contemporaneous IE’s that had been conducted, and would not be expected to yield any additional objective clinical information of a meaningful benefit in the management of Mr. Amiri’s injuries beyond that which had already been documented;

• Mr. Amiri’s injuries had “physiologic recover times of 8 to 12 weeks” and he was now 11 months post-accident;

• Mr. Amiri was noted to have not responded favourably to physiotherapy treatment previously, and it was determined that further similar such care would not be expected to be of benefit

• Dr. Rod did not provide any “objective clinical findings or claimant-specific rationale in support of a need for [a chronic pain assessment]” and “no detail regarding Mr. Amiri’s medical and rehabilitative follow-up to date.”

I include Dr. Levy’s reasons in some detail simply to illustrate how contradictory and wrong-headed they are.

Regardless of the failings of Dr. Rod’s Treatment Plan, Dr. Levy had ample information before him to indicate the presence of chronic pain and the need for some alternative treatment. It was clear from Dr. Maistrelli’s report, that Mr. Amiri had developed, at the very least, a post-traumatic stress-type disorder with evidence of chronic pain.⁴⁰ If physiotherapy and psychotherapy were not helping, and Mr. Amiri was actually getting worse, it would seem logical that something more was required – perhaps even the referral to a multidisciplinary chronic pain management clinic that Dr. Maistrelli recommended. Not one of the insurer’s assessors at Cira up to that point appears to have considered chronic pain as a real possibility, despite clear evidence, nor did they turn their minds to possible treatment alternatives. No chronic pain assessment was ever done by Wawanesa. Under the circumstances, I find a chronic pain assessment was exactly what was called for at that time Dr. Rod proposed one, and it was unreasonable for Wawanesa to refuse to pay for it. Had Mr. Amiri had the benefit of such an assessment early on, things may well have turned out differently for him.

Wawanesa is required to pay the full cost of this assessment as claimed, at $1,950.63.

EXPENSES:

Mr. Amiri is entitled to his reasonable expenses of this arbitration proceeding. If the parties are unable to agree on the amount of expenses, either party may, within 30 days of this decision, request in writing, that I determine the matter by way of a written hearing.

November 30, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 261

FSCO A12-004133

BETWEEN:

MANSOOR AMIRI

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Wawanesa Mutual Insurance Company shall pay to Mansoor Amiri:

a) an income replacement benefit of $79.80 per week from September 4, 2012 and ongoing;

b) attendant care benefits of $824.45 per month from February 3, 2011 and ongoing;

c) housekeeping and home maintenance benefits of $2,500 exclusive of interest and/or costs;

d) housekeeping and home maintenance benefits of $100 per week from January 1, 2012 and ongoing;

e) $1,950.63 for the cost of a Chronic Pain Assessment;

f) interest on the overdue amount of benefits, with the exception of item (c);

g) his reasonable expenses of the arbitration proceeding.

November 30, 2015

Susan Sapin Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2At the hearing, Mr. Amiri withdrew his claim of $5,941.38 for treatment provided by East York Physiotherapy.
3. 3S. 2(1.2)(g) of the Schedule. The Schedule further defines impairment as a “loss or abnormality of a psychological, physiological or anatomical structure or function.” In Pastore v. Aviva Canada Inc., 2012 ONCA 642, 112 O.R. (3d) 523, the Court of Appeal upheld the findings of the FSCO Arbitrator and Appeals Delegate, that a finding of marked impairment in one of four categories of function qualified as a catastrophic impairment.
4. 4Diagnostic and Statistical Manual of the American Psychiatric Association, Fourth Edition (DSM-IV).
5. 5The parties chose not to call any medical witnesses at the hearing, and instead filed the medical reports and clinical notes and records of treating healthcare providers and assessors.
6. 6Report of Insurer’s Disability Examination (IE) dated January 13, 2011, at Tab 84 of the Insurer’s Brief
7. 7Report of Insurer’s Medical Rehabilitation IE dated March 2, 2011, at Tab 90
8. 8Excerpt from the authors of the Pain Patient Profile test (P-3), as quoted by Dr. West in his report at p. 8. As noted below, according to Dr. Azadian, Mr. Amiri’s response to medication was poor, and he had little insight into his condition and inadequate coping mechanisms.
9. 92012 ONCA 642 at pg. 4
10. 10As per the Court of Appeal in Pastore v. Aviva Canada Inc., 2012 ONCA 642, 112 OR (3d) 523, upholding the findings of the FSCO arbitrator and the appeals delegate.
11. 11Diagnostic and Statistical Manual of the American Psychiatric Association, Fourth Edition (DSM-IV).
12. 12The parties chose not to call any medical witnesses at the hearing, and instead filed the medical reports and clinical notes and records of treating healthcare providers and assessors.
13. 13As noted by Dr. Kevin Rod in his Chronic Pain Assessment report of December 16, 2010. Exhibit 2, Tab 29.
14. 14Exhibit 2, Tabs 8 and 9.
15. 15Arbitration Brief of the Insurer, Tab 96, pg. 10
16. 16See footnote 6, supra
17. 17Brief Battery for Health Improvement
18. 18See footnote 7, supra
19. 19Ibid., at Page 9
20. 20Ibid., at Page 8
21. 21American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 – Chapter 14/301
22. 22Guides c. 14, p. 300
23. 23P. 294-295
24. 24Guides, P. 295.
25. 25Insurer’s Brief, Tab 101.
26. 26Guides, P. 295
27. 27Applicant’s Brief, Tab 35. The maximum monthly amount payable under the Schedule in the first 104 weeks after the accident is $3,000.
28. 28Insurer’s Brief, Exhibit 1, Tab 85. Orthopaedic IE Dr. F. Abuzgaya’s report January 17, 2011.
29. 29Likely because he attempted to account for it under Level 2, where it does not belong.
30. 30At pg. 7.
31. 31At pg. 9.
32. 32Report of Dr. West, at pg. 8.
33. 33I note that none of these factors were addressed by Dr. Abuzgaya, the orthopaedic surgeon, who opined that Mr. Amiri did not require attendant care at all, “from an orthopaedic perspective.” Such a narrow perspective does not take into account the multifactorial basis of Mr. Amiri’s medical condition and I give Dr. Abuzgaya’s opinion no weight for that reason.
34. 34At Page 9
35. 35Explanation of Benefits dated March 3, 2011, Insurer`s Brief, Exhibit 1, Tab 54.
36. 36S. 5(2)(b) of the Schedule
37. 37Ibid.
38. 38Dr. Kevin Rod, Family Medicine and Pain Specialist, Toronto Poly Clinic, diagnosed Chronic Pain Syndrome with Cervicogenic headaces and recommended a multi-disciplinary pain program.
39. 39IE Assessment Report – Paper Review of Dr. S. Levy December 21, 2010, Insurer’s Brief, Exhibit 1, Tab 83.
40. 40Report dated March 2, 2011, Exhibit 2, Tab 26. I note that Dr. West also raised the possibility of chronic pain at pg. 8 of his report, but made no recommendations for treatment.