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

Neutral Citation: 2016 ONFSCDRS 137

FSCO A13-004662

BETWEEN:

A.G.

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

Before: Jessica Kowalski

Heard: September 8, 9 and 10 and October 1, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Nicole Corriero for A.G. J. Claude Blouin for Wawanesa Mutual Insurance Company

Issues:

The Applicant¹ was injured in a motor vehicle accident on May 28, 2011. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.² Wawanesa terminated weekly income replacement benefits effective July 14, 2012 and denied funding of certain treatment and assessment plans on the basis that A.G.’s injuries did not prevent him from working and were predominantly minor. The parties were unable to resolve their disputes through mediation, and A.G. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R. R. O. 1990, amended.

The issues in this hearing are:

Is A.G. entitled to an income replacement benefit in the amount of $349.66 per week from July 14, 2012 to date and onwards?
Is A.G. entitled to receive a medical/rehabilitation benefit for the following:

i. $1,961.16 for an exercise program recommended by Eglinton East Health Centre Ltd. in a treatment and assessment plan (“OCF-18”) dated June 5, 2012?

ii. $650.00 for orthotics recommended by Eglinton East Health Centre Ltd. in an OCF-18 dated December 7, 2012?

iii. $1,716.13 for a work hardening program recommended by Eglinton East Health Centre Ltd in an OCF-18 dated December 28, 2012?

iv. $290.09 toward the cost of prescription medications submitted by OCF-6 dated February 27, 2015?

Is A.G. entitled to the cost of the following examinations:

i. $2,050.00 for a psychological assessment by Dr. Judith Pilowsky as set out in an OCF-18 dated April 26, 2012?

ii. $2,200.00 for a TMJ assessment by Dr. Lewandowksi as set out in an OCF-18 dated May 14, 2012?

iii. $2,200.00 for an orthopaedic assessment by Dr. Michael West as set out in an OCF-18 dated August 10, 2012?

iv. $1,220.00 for an MRI proposed by Eglinton East Health Centre Ltd. in an OCF-18 dated September 18, 2012?

v. $2,500.00 for an orthopaedic assessment by Dr. Ogilvie‑Harris as set out in an OCF-18dated March 20, 2015?

Is Wawanesa liable to pay a special award because it unreasonably withheld or delayed payments to A.G.?
Is A.G. entitled to interest for the overdue payment of benefits?

Result:

The application for arbitration is dismissed.
The issue of expenses is to be resolved by the parties or by a hearing pursuant to section 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

On May 28, 2011, A.G. was driving his minivan when a vehicle coming in the opposite direction made a left turn and struck his minivan on the driver’s side. A.G.’s airbags deployed and his minivan was written off. Paramedics took A.G. to Scarborough Hospital by ambulance, where he was seen in the emergency (“ER”) department.

A.G. was treated for soft tissue injuries and released with a prescription for Percocet. He had X‑rays of his neck, back and chest. All were normal.

A.G. attributes most of his problems to the accident. Although A.G. had pain after a previous car accident in 2006 (the “2006 accident”), most of his pain had resolved by the time of the 2011 accident. Despite residual pain in his neck, shoulders and back, A.G. had returned to work and was functioning without pain medication. He says that the 2011 accident exacerbated his pre‑accident pain, especially the unresolved back pain, and left him anxious, depressed and in too much pain to work. He says his accident-related impairments made him an undesirable partner to his wife in Kosovo which caused the breakdown of their marriage.

Wawanesa categorized A.G.’s impairments as a “minor injury”³, which A.G. disputes. He says that his injuries are not predominantly minor, or that, if they are, he has compelling evidence of pre-existing physical and psychological impairments that would take him out of the Minor Injury Guideline (the “MIG”).

Wawanesa submits that A.G.’s accident related impairments are limited to soft tissue injuries and that there is no compelling evidence of a pre-existing condition that would take him out of the MIG. Wawanesa submits that A.G. has a history of exaggeration, that his evidence is unreliable, that he was working when he says he was not, and that he did not exhaust even the pre-approved treatment available to him under the MIG.

There is no doubt that A.G. has significant health challenges, many owing to a post-accident diagnosis relating to a compromised immune system that is unrelated to the accident itself. By the time of the hearing, A.G. presented as a person who is suffering. However, I find that he has failed to prove that the 2011 accident caused an inability to perform the essential tasks of his employment, a complete inability to do any work for which he is reasonably suited, or that his accident-related impairments are not predominantly a minor injury.

Income Replacement Benefits

At the time of the accident, A.G. was working as a box labeler, work he found through a placement agency the year before. He labelled product boxes of varying sizes and weights. He worked in a factory setting and had to keep up with a production line. His work involved standing, bending and twisting, and lifting packages of boxes that sometimes weighed up to 25 or 30 lbs.⁴

A.G. applied for IRBs in March 2012, certifying that his accident-related injuries prevented him from working from the day of the accident.

To be entitled to income replacement benefits (“IRBs”), A.G. must establish that he was employed at the time of the accident and that, as a result of and within 104 weeks of the accident, he suffered a substantial inability to perform the essential tasks of that employment.⁵

To be entitled to IRBs more than 104 weeks after the accident, the legal test changes, and A.G. must prove that, as a result of the accident, he is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.⁶

Wawanesa paid IRBs from February 2012 until July 14, 2012, when it terminated benefits on the basis of a multidisciplinary insurer examination report by Life Mark Assessments dated June 27, 2012⁷ which concluded that A.G. was not disabled from working and that the injuries he sustained in the accident were minor soft tissue injuries.

For the reasons that follow, I find that A.G. is not entitled to any additional IRBs because he has failed to prove, on a balance of probabilities, that he meets either test.

A.G.’s oral evidence was not consistent with what he told his family doctor at or around the time of the accident, as well as in the years that followed. His subjective reports to his family doctor and his oral evidence also conflict with the documents in evidence about A.G.’s employment.

For example, after the accident, A.G. reported to his family doctor that:⁸

his last pre-accident job was in construction cleaning and was a cash job
he was not working at the time of the accident and had been laid off three months before
he could not look for work after the accident because of accident-related pain.

Meanwhile, A.G.’s employment-related documents in evidence disclose something different:

A.G. was working as a box labeller at the time of the accident, a job he started on August 23, 2010
A.G. returned to work immediately following the accident and his work hours increased in the next three weeks
He worked continuously until the end of June 2011, returned to work after an eight week break, and then stopped work for twelve weeks, during which time he travelled to Kosovo from October 2011 to January 2012, and then returned to work for three weeks.

I find that the most credible, reliable and consistent evidence came from A.G.’s family doctor, Dr. Jill Blakeney. She made observations independent of A.G.’s subjective reports regarding his pain. Despite what she described as A.G.’s extreme pain behaviour⁹, over the entire time she observed A.G. , Dr. Blakeney saw no barrier to his ability to work, look for work, or return to his pre-accident work. She testified, and her notes confirm, that he actively encouraged him to stay active and to find work because his injuries were minor and not medically significant.

On June 6, 2011, A.G. made his first post-accident visit to see Dr. Blakeney. On that day, he saw a colleague of Dr. Blakeney’s, Dr. Rosemarie Lall.¹⁰ A.G. reported the accident to Dr. Lall, who noted A.G.’s accident-related complaints to be headaches, entire upper body aches, lower back ache, as well as a dry, irritative cough (just as with the 2006 accident). Despite his complaints of pain, Dr. Lall’s notes show that she strongly encouraged A.G. to get rehab, to “move on with job hunting” and to not let the accident take over his life. She referred him for physiotherapy to CBI Physio.

A.G. then saw Dr. Blakeney on June 20, 2011. He told Dr. Blakeney about the accident and that the ER doctor told him he would have sore muscles for a while. He complained to Dr. Blakeney that the muscles in his neck, shoulders, chest and back hurt with movement. During this visit, Dr. Blakeney noted that A.G. told her that he had been working in a construction cleaning job but had been laid off for three months before the accident and that since it was a cash job he could not claim EI.

Like Dr. Lall before her, Dr. Blakeney encouraged A.G. to keep moving and to look for another job or government retraining. Her notes show that she even sent him to a local employment office. She wrote that, given A.G.’s “history of excessive disability from minor MVA a few years ago, encouraged him to continue with normal day-to-day activities as much as possible.”

A.G. next saw Dr. Blakeney on July 25, 2011. During this visit, he told Dr. Blakeney that he was unable to look for work because he was in so much pain. Despite his complaints and extreme pain behaviour, she nevertheless again encouraged A.G. to continue his normal activities.

Documents in evidence relating to A.G.’s employment show that he was working during the time that he was telling Dr. Lall and Dr. Blakeney that he could neither work nor look for work because of pain. His application for accident benefits also states that A.G. neither returned to work nor could he work because of the accident, both of which are false.

According to his Record of Employment¹¹ (“ROE”) and OCF-2 (Employer’s Confirmation Form) completed by Direct Staffing Solutions Inc. (“DSS”), A.G. started his job as a box labeller on August 23, 2010. The ROE shows that, not only did he return to work immediately after the accident, but that he worked 50, 70 and 50 hours per week in the three weeks that followed. He worked continuously until the end of June, 2011, when his ROE shows no hours worked until August. If he was not working for eight weeks in July and August 2011 because of back pain or other accident-related impairments, he did not seek treatment (from his family doctor or otherwise) during this time, and there are no documents in his employment records in evidence to explain the absence. He resumed working, although for fewer hours per week until there is another gap in his employment for 12 weeks, when he was in Kosovo (from October 2011 to January 2012).

While it may be true that A.G. worked in a cash construction job at some point, there is no evidence that he worked such a job at any time in the year before the accident, that he was laid off during this time or that he worked part-time. If what he was reporting to his family doctor is true, then, given the employment records in evidence, any construction cleaning job would have been in addition to his work as a box labeller through DSS. A.G. gave no explanation for what I find to be an important discrepancy.

I also agree that a doctor’s file may contain errors. However, in this case, I find it unlikely that two different doctors recorded similar subjective accounts from A.G. on separate occasions that were fairly detailed and consistent with each other but that both were wrong. I find it unlikely that Drs. Lall and Blakeney would have reported such similar accounts had A.G. not told them so.

Also, A.G. did not provide explanations for important discrepancies between his reports to his doctors and the other evidence.

When she saw A.G. on June 6, 2011, Dr. Lall referred A.G. to physiotherapy at CBI Physio. A.G. attended once, to register. CBI Physio completed an OCF-23 treatment confirmation form that it sent to Wawanesa. When A.G. saw Dr. Blakeney on June 20, 2011, he told her that CBI Physio was too far and he had to change buses to get there, which hurt his back. Dr. Blakeney investigated treatment options elsewhere, and referred him to another clinic, LifeMark.¹² It is not clear whether A.G. attended there for treatment, but according to Dr. Blakeney’s notes, A.G. would only go for treatment (including for chronic pain management) if he did not have to change buses.

While A.G. complained that he could not go for treatment as long as he had to change buses because the transfer and waiting hurt his back, in October 2011 he was able to travel by plane to Kosovo for three months. The flight itself took approximately 10 hours, with a layover in Turkey. He did not see Dr. Blakeney before the trip, and there is no evidence that he got any medication or treatment to help with the travel.

When he got to Kosovo, A.G. says he started attending physiotherapy and other treatment regularly (three times per week). He produced no documents to support the treatment in Kosovo, or of the cost, which he testified was 3,000 euros.¹³

When A.G. returned from Kosovo in January 2012,¹⁴ he immediately resumed his job as a box labeler. According to his ROE and the OCF-2, he worked for 20, 50 and 40 hours in the three weeks after he returned until he quit on January 27, 2012, citing health reasons.

On January 30, 2012, A.G. went to see Dr. Blakeney, his first visit in six months. Dr. Blakeney noted that he presented with extreme pain behavior as before, but that he looked well-nourished and cheerful compared to previous visits. He complained of back pain, bilateral knee pain and shoulder pain. He told Dr. Blakeney that he was “still” not working but that he was looking for work.

As before, A.G. reported to Dr. Blakeney that he was not working when he had been, and he did not tell her that he had quit his job on January 27, purportedly because of accident-related back pain, just three days before coming to see her for that pain.

A.G. also says that the accident caused the breakdown of his marriage; that when his wife in Kosovo learned of the accident, she decided to leave him because she did not want to be with a damaged man.

Meanwhile, more than a year before the accident, in April 2010, Dr. Blakeney noted that A.G. was reporting stress because his new wife in Kosovo wanted a divorce because of immigration delays. Dr. Blakeney noted that A.G. was upset and told her he had quit work as a result.

In another version,¹⁵ A.G. told Dr. Blakeney when he came back from Kosovo that he had gone there to tell his wife that he could not sponsor her to Canada as Canadian officials would not admit her because she is his cousin. The result was that they separated. His marital status as disclosed in his income tax returns is consistent with a separation in 2010, after which it changed from married to divorced.

By the time of the hearing, there was no dispute that A.G. has significant health challenges. By late 2012, his medical records show that he was suffering a number of infections and symptoms unrelated to pain or the accident. By late 2012, he was being treated for infections relating to a compromised immune system. Despite being diagnosed with HIV and being treated for various secondary infections, his primary focus, according to his testimony and his reports to Dr. Blakeney, was his back pain and the accident.

Despite all this, Dr. Blakeney certainly did not think A.G. was disabled from work. Her records from 2011 through 2014 show that she continued to encourage him to work and stay active. If Dr. Blakeney had any concerns about A.G.’s ability to return to work following the accident, I have no doubt that she would have said so, both to A.G. at the time and during her testimony. She testified that she told him that his injuries were not significant or medically dangerous and it is plain from her notes that her ongoing advice was that A.G. should work. Even though A.G. was not candid with Dr. Blakeney about the nature of his pre-accident work (having told her that he worked in construction cleaning), Dr. Blakeney even then did not feel that the accident presented any barriers or impairments to his ability to return to work. I heard no evidence that his job in construction cleaning would have been any less strenuous than his job labelling boxes.

Finally, throughout 2012 to 2014, A.G. himself continued to report to Dr. Blakeney that he was looking for work, suggesting he felt able. In 2013, he continued to report to Dr. Blakeney that he was looking for work and she continued to encourage him to work. A.G.’s own comments to Dr. Blakeney that he was looking for work call into question his testimony that he was unable to engage in any employment for which he was reasonably suited by education, training or experience.

In a case that turns on credibility, discrepancies in A.G.’s reports to his family doctor, and between his testimony and employment-related records take on greater significance because they are at the heart of the IRBs in dispute. These discrepancies make A.G.’s testimony unreliable where it is not corroborated by other evidence. In this case, the documented evidence relating to A.G.’s employment directly contradicts his oral representations. I find that A.G.’s testimony is unreliable and contradicted by his family doctor’s records and employment and income tax documents; and that he therefore has not proved that, on balance, the accident left him unable to perform the essential tasks of his pre-accident employment or completely unable to engage in any employment for which he is reasonably suited.

Minor Injury Guideline (the “MIG”)

A.G. submits that his injuries are not predominantly minor, or that, if they are, he has compelling evidence of pre-existing physical and psychological impairments that made him vulnerable before the accident and take him out of the Minor Injury Guideline (the “MIG”).

The Law

An insured person’s impairment comes within the MIG if the impairment is predominantly a minor injury, in which case the insured person can only receive a maximum of $3,500 for medical treatment and rehabilitation.

The Schedule and the MIG define “minor injury” as:

A sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. This term is to be interpreted to apply where a person sustains any one or more of these injuries.

Section 18(2) of the Schedule and paragraph 4 of the MIG provide for an exception from the MIG: an insured person’s impairment does not come within the MIG if the impairment is predominantly a minor injury but, based on compelling evidence provided by the insured person’s health practitioner, the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if he or she is subject to the $3,500 limit referred to in section 18(1) of the Schedule.

The MIG prescribes that compelling evidence should be provided using a treatment and assessment plan (OCF-18) with attached documentation.

The MIG also states that only in extremely limited instances where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition will prevent a person from achieving maximal recovery from the minor injury for the reasons described above is the person’s impairment to be determined not to come within the MIG.

“Compelling evidence” is directed at the sufficiency of the evidence, which is to be determined on the facts of each individual case, having regard to what is reasonable in all of the circumstances.¹⁶

I find that A.G.’s accident-related impairments fall within the definition of a “minor injury” and that he has not provided the compelling evidence required to take him out of the MIG.

A.G.’s impairments are predominantly a “minor injury”

Based on the medical evidence, from a physical standpoint, A.G. suffered minor soft tissue injuries as a result of the accident. According to the ER record, A.G. was discharged with a diagnosis of lumbar sprain and costochondral sprain. X-rays taken immediately after the accident of his chest, neck and back were normal. During his first post-accident visit, A.G. told Dr. Blakeney that the ER doctors told him he was fine except for muscle pain. When he saw Dr. Blakeney after his trip to Kosovo (on January 30, 2012), he told her that doctors he saw in Kosovo had told him there was nothing wrong with him except a muscle problem.

The only suggestion of an abnormal test result comes from A.G. himself. When he saw Dr. Blakeney on January 30, 2012 and reported to her that he underwent multiple diagnostic tests in Kosovo (x-rays, blood tests, whole body tests and an MRI, of which there were no records produced), A.G. told her that all of his results were normal, including the MRI. When he next saw Dr. Blakeney on February 13, 2012, he told her that the MRI results were abnormal, and asked for an MRI of his back, neck and shoulders. Dr. Blakeney requisitioned an MRI of A.G.’s lumbar spine. That MRI, taken at Scarborough Hospital on February 25, 2012, was normal, with no evidence of disc protrusion, spinal stenosis, lumbar nerve root compression or any abnormalities of the imaged segments.

Dr. Blakeney was emphatic in her testimony that A.G.’s injuries were minor. She testified that she variously explained to A.G. that his injuries were minor, fairly minor, not medically significant, not medically dangerous and would not cause him harm or permanent impairment if he worked or went on with his day-to-day life. He had no tears to any ligaments or tendons, and Dr. Blakeney testified that he did not even have whiplash as a result of the accident.

Residual Back Pain

The fact that A.G. had a prior injury in 2006 from which he had residual back pain does not itself take him out of the MIG. There must be compelling evidence from A.G.’s health practitioner that this prior injury would prevent him from achieving maximal recovery if subjected to the MIG treatment limits.

There is no compelling evidence from A.G.’s treating health practitioner, Dr. Blakeney, that A.G.’s residual back pain would have prevented him from achieving maximal recovery were he subject to the MIG treatment limits. The evidence from Dr. Blakeney is overwhelmingly the opposite: she (and Dr. Lall) consistently encouraged A.G. to get some treatment, stay active and return to work. Similarly, A.G. has not provided compelling evidence that his pain was such that it was not a clinically associated sequelae of the sprains he suffered in the accident.

I am not persuaded that a MIG discharge report of chiropractor Dr. John Bare recommending further treatment is compelling: it was a singular report produced from limited contact with A.G., and as a result does not outweigh the evidence of Dr. Blakeney, who had the benefit of observing A.G. over a long period of time. Moreover, I cannot conclude that the pre-approved MIG treatment would have been insufficient due to A.G.’s residual back pain when A.G. did not actually go for treatment, did not tell Wawanesa that CBI Physio was too far to attend for treatment, or ask Wawanesa to transfer the treatment to another clinic.

Psychological issues

Although A.G. was diagnosed with Post Traumatic Stress Disorder (“PTSD”) and major depressive disorder following an assessment by psychologist Dr. Judith Pilowsky, I find that these cannot be considered to be his predominant impairment. There is also no compelling evidence to find that A.G. has pre-existing psychological impairments that would prevent maximal recovery from the minor injury as required under the MIG.

First, there is evidence in Dr. Blakeney’s notes that she considered PTSD and depression in the face of A.G.’s pain response, but there is no compelling evidence from her that A.G.’s predominant post-accident injury was not pain from soft tissue injury, but was psychological in nature.

There is evidence that A.G. responded to his pain unusually and had unusual pain focus, although all the evidence suggests that there was no organic basis for his pain. Dr. Blakeney testified that A.G. exhibited extreme pain behaviour. She repeatedly noted that he presented with “++ pain behaviour”. An orthopaedic surgeon, Dr. Roscoe, in a report for Wawanesa dated January 23, 2015, wrote that A.G. presented with an abnormal pain response. Two months after the accident, on July 25, 2011, Dr. Blakeney wrote that A.G. had chronic pain. She testified that, although the diagnosis was premature vis-à-vis the 2011 accident, she made the notation because she felt that that was where A.G. was going, given his reaction after the 2006 accident.

However, Dr. Blakeney also testified that A.G.’s presentation after the 2011 accident was exactly the same as in 2006, down to a dry cough, although the accidents were very different. Meanwhile, her notes indicate that on multiple visits, she observed that A.G.’s cough would only start once she entered the room, and that he did not cough in the waiting area or the examining room until she got there.

Second, psychologist Dr. Judith Pilowsky assessed A.G. on October 10, 2012 for the purpose of providing a psychological medical/legal report. In her report dated October 31, 2012, she diagnosed A.G. with a major depressive disorder and PTSD as a result of the accident..

According to her report, Dr. Pilowsky had assessed A.G. once before, in 2007, in relation to his 2006 accident. At that time, she also diagnosed him with major depressive disorder and PTSD (although her 2007 report was not in evidence) and deemed his prognosis as guarded.

There was no evidence before me of what, if any, treatment A.G. underwent as a result of Dr. Pilowsky’s diagnoses in 2007, although in her October 31, 2012 report, she wrote that he was improving with respect to his psychological symptoms before the 2011 accident. Similarly, there was no evidence that, Dr. Pilowsky’s prognosis notwithstanding, that her 2007 diagnoses resulted in pre-accident functional limitation or impairment. Dr. Blakeney testified that she considered PTSD and depression and had referred A.G. to a psychiatrist when he seemed depressed after the 2008 death of his father, and when he reported marital stress. It appears that A.G. did not seek psychiatric or psychological involvement consistently or with any regularity. According to Dr. Blakeney, A.G. was not psychiatrically minded and his interest in psychiatric intervention waxed and waned. His evidence was consistent that the primary concern was pain.

Dr. Pilowsky also wrote that A.G. was highly suicidal, at high risk of suicide, had severe suicidal ideation and was in need of immediate psychological intervention and that her opinion was based upon, among other things, A.G.’s self-reports. She wrote that she had no reason to assume that he was anything but truthful in his responses during the assessment.

Wawanesa’s psychologist, Christopher Hope, also noted that A.G. told him during the psychological IE that he would commit suicide unless his mother was home, prompting Dr. Hope to make sure she was home after the assessment. His and Dr. Pilowsky’s references to suicide came from A.G. himself during the assessments. Dr. Blakeney, who was much more familiar with A.G.’s health and his family circumstances, turned her own mind to this question. She testified that, after his HIV diagnosis, piled on top of his pain issues and unemployment, she took steps to satisfy herself whether A.G. was suicidal and determined that he was not.

In these circumstances, I prefer the evidence of Dr. Blakeney and have given little weight to Dr. Pilowsky’s report. Dr. Pilowksy met A.G. on specific occasions for the limited purpose of providing medical/legal opinions. Dr. Blakeney, on the other hand, has treated AG consistently since two days after the 2006 accident. She referred A.G. to a psychiatrist after his father died, but testified that A.G. was not psychiatrically-minded and it appears that he did not pursue regular treatment then or subsequently. Based on Dr. Blakeney’s evidence, I am not persuaded that psychological issues were A.G.’s predominant injury.

Even if he was diagnosed with PTSD and depression, A.G.’s predominant injury and focus was his back pain. And, even though she called it chronic pain two months after the accident, Dr. Blakeney nevertheless did not see his pain to be a barrier to his ability to function or work, and continuously encouraged him to do so and to stay active because his injuries were minor, not medically significant or dangerous, and would not harm him.

Conclusion

This case turns entirely on the reliability of A.G.’s evidence. There were numerous inconsistencies in A.G.’s testimony and between his reports to doctors and the documents in evidence. These discrepancies weigh against the general reliability of A.G.’s evidence and undermine the reliability of the conclusions of his assessors insofar as they rely on his representations. As a result, I find A.G. did not present any reliable or credible evidence to support his claim for IRBs.

The same is true for his claims that his impairments fall outside the MIG. Although there is evidence that A.G. had pre-existing back pain and psychological issues, I find that there is no compelling evidence from his treating family doctor that they would prevent him from achieving maximal recovery if subjected to the MIG limits or that his psychological issues make up his predominant injury. For these reasons, I find that A.G. has not met his burden of proof, and the application for arbitration is dismissed.

EXPENSES:

The parties made no submissions on expenses. I urge them to resolve this issue on their own. If they cannot, the parties may deliver brief written submissions on the issue of expenses by July 12, 2016. If an expense hearing is required, I will consider only the written submissions and materials delivered by July 12, 2016.

May 12, 2016

Jessica Kowalski Date

Arbitrator