Financial Services Commission of Ontario

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 76

FSCO A14-001839

BETWEEN:

DANIEL SABADASH

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Alan G. Smith

Heard:

In person at Gillespie Reporting Services at Ottawa, Ontario on April 7, 2015, May 25, 26, 27, 28, 29, and October 23, 2015 and by written submissions completed on November 30, 2015

Appearances:

Mr. Daniel Sabadash participated

Mr. Greg Gilhooly participated for Mr. Daniel Sabadash

Mr. Beau Chapman and Mr. Todd J. McCarthy participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Daniel Sabadash, was injured in a motor vehicle accident on March 3, 2011, and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Sabadash, through his representative, applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

1. Is Mr. Sabadash entitled to an Income Replacement Benefit (“IRB”) during the first 104 weeks after the accident?

2. Is Mr. Sabadash entitled to an IRB for the period after the first 104 weeks after the accident?

3. Is Mr. Sabadash entitled to payment for assistive devices as recommended by FunctionAbility Rehabilitative Services Inc. in the amount of $2,176.56?

4. Is Mr. Sabadash entitled to payment for occupational therapy treatment by FunctionAbility Rehabilitative Services Inc. in the amount of $3,597.96?

5. Is Mr. Sabadash entitled to payment for a neuropsychological assessment by Ricci Rossy Psychological Services in the amount of $1,707.00?

6. Is State Farm liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Sabadash?

7. Is State Farm liable to pay Mr. Sabadash’s expenses in respect of the Arbitration?

8. Is Mr. Sabadash liable to pay State Farm’s expenses in respect of the Arbitration?

9. Is Mr. Sabadash entitled to interest for the overdue payment of benefits?

Result:

1. Mr. Sabadash is entitled to an IRB during the first 104 weeks after the accident.

2. Mr. Sabadash is entitled to an IRB for the period after the first 104 weeks after the accident.

3. Mr. Sabadash is entitled to payment for assistive devices as recommended by FunctionAbility Rehabilitative Services Inc. in the amount of $2,176.56.

4. Mr. Sabadash is entitled to payment for occupational therapy treatment by FunctionAbility Rehabilitative Services Inc. in the amount of $3,597.96.

5. Mr. Sabadash is entitled to payment for a neuropsychological assessment by Ricci Rossy Psychological Services in the amount of $1,707.00.

6. State Farm is liable to pay a special award of $30,000.00 because it unreasonably withheld or delayed payments to Mr. Sabadash.

7. Expenses shall be payable. In the event that the parties cannot come to an agreement on the matter of expenses, any party may deliver written submissions to me of no more than 5 pages. The claimant’s submissions to be delivered within 30 days of the date of this decision and the responding party’s submissions to be delivered within 20 days of the receipt of the claimant’s submissions. Reply material shall be provided within 10 days of receipt of the response.

8. Mr. Sabadash is entitled to interest for the overdue payment of benefits.

EVIDENCE AND ANALYSIS:

BACKGROUND

The following information is not in dispute:

Daniel Sabadash was 52 years old at the time of the subject motor vehicle accident on March 3, 2011. In 1999, memories of childhood sexual abuse he had suffered were triggered by a couple of life events which caused him to suffer from anxiety, depression and fear, for which he began regularly seeking treatment around 2000. He has also been an insulin-dependent diabetic since his late 20s.

He built the house he was living in before the accident. He did anything that did not require an engineer, including the framing, walls, roofing, flooring, and plumbing. He estimated doing roughly 75% of the physical work. Before the accident, he played a lot of sports, including golf and baseball. He coached his daughter’s hockey team and was training to run the 5 km marathon with his daughter at the Ottawa Race Weekend.

His work history included 23 years in the electronics industry working on uninterruptable power supply (“UPS”) battery backup systems. He started as a junior technician working on small systems for one computer, and worked his way up within a few years to several megawatt systems. He was then moved into management and supervisory roles until being promoted to a national service manager, where he was responsible for all of Eastern Canada. He worked on systems for large organizations like the Bank of Canada, Nortel and various government departments. He was flown around the country to work on systems where workforces of several hundred people would be waiting for his work to be completed. He started his own company doing UPS work and was recruited by a competitor to join their operation. He switched careers around 1999 to work in the software industry; he worked in management for several companies, and at one point was managing 30-35 people in a unionized environment. At the time of the accident, he had been working for Makita Canada Corporation (“Makita”) as a tool supply and repair shop manager for less than a month.

The information provided to me with respect to the accident is as follows. Mr. Sabadash was stopped at a red light and turned to his right in the vehicle to do something. He heard a large bang as his vehicle was struck from the rear. Mr. Sabadash recalls being dazed after the impact and experiencing numbness down his right side. There was pain in his neck and back, and a loud ringing in his hears. After the accident, he did everything he could to get back to work because he couldn’t afford to get fired. He had no spouse to fall back on and no medical leave with his new employer. He was in Cambridge, Ontario for the purpose of meeting his new supervisor the day following the accident. He did not initially apply for an IRB because he was not aware that they existed.

Mr. Sabadash attended at the Kemptville District Hospital Emergency Room on March 5, 2011, and recalls the attending physician telling him he may have hit the side of his head on the headrest and suffered a concussion. He had pains and headaches upon his return to work in Ottawa. He recalls that he hurt everywhere and his mind was scattered.

Mr. Sabadash was terminated from his job at Makita approximately 7 months after the accident. He consistently underperformed at the job and was fired because of his inability to complete the critical task expected of him, which was to learn how to repair tools and assist with at least 40% of the shop’s repair work.

The Applicant’s only other period of work in the nearly 5 years since the accident was a 10-month period starting in July 2012 with Tyco Corporation (“Tyco”). The job involved designing and costing alarm systems and was fairly lax in terms of the amount of work required and not very stressful. Mr. Sabadash worked from home. He typically only worked 2-3 hours per day and estimated he averaged 15 hours per week. His site visits were never more than 2 hours. He might go in the office once per month to check for mail or to pick up a paystub. He would spend much of his days in bed or sitting on the couch watching TV. Mr. Sabadash estimated that on average there were 2 days per week when he did nothing work-related. He never had more than 1-3 tasks in a given week and could obtain extensions to complete his work wherever needed. He described it as “definitely the slackest job I ever had that actually paid money”. He asked management why they were paying him to do what he was doing; he was told that they expected their Ottawa branch to get busier, and this concerned him. However, the increased business did not materialize, and Mr. Sabadash was laid off in May of 2013 through no fault of his own.

The Applicant had difficulty paying for prescription medications, and often found he could not afford to fill them. Mr. Sabadash reported still experiencing the following symptoms: a constant headache all day; issues with his eyes tracking together; a loud ringing in his hears; difficulty finding words and formulating thoughts; losing his train of thought; memory issues affecting his organizational skills; restrictions on his neck movement and issues looking up without dizziness; pain in his head, neck, right shoulder, and hip; issues with depth perception, and loss of balance resulting in several falls. None of Mr. Sabadash’s symptoms have improved since the accident, and most of them have worsened.

WITNESS TESTIMONY

Mr. Daniel Sabadash – The Applicant

Mr. Sabadash testified that he tried to return to work immediately after the accident because he was in a new job that he needed to hang on to and couldn’t afford the financial impact of any time off work. He had no benefits or support system to replace his lost income, and was not even aware of the existence of IRBs.

The Applicant advised that at Makita he worked on having Jeff, the technician he was supervising, train him in tool repairs. He didn’t catch on very well, and it got to the point that Jeff seemed to prefer him not going back to the tool repair area. His inability to learn the tools frustrated him. Because of his prior experience as a technician, he was frustrated he couldn’t pick up on something he perceived to be as simple as the tool repair work. Jeff would tell him something one day, and the next day he had forgotten it and had to ask Jeff about it again.

In his past experience in the electronics industry, he would be hired, given a manual and told “know it before you get to a customer”. He had no problem working within those parameters because he had no problem figuring things out. Since the accident, he finds it very difficult to figure things out. He knew he wasn’t doing the quality of work expected of him by employers. He could no longer learn things quickly and he found he was intolerant to any stressful situations that arose at work.

After the layoff from Tyco, the Applicant continued looking for work because of financial reasons. However, he is no longer applying for jobs because his medical advisers have all told him that he shouldn’t be working or even looking for work.

The Applicant testified that the cumulative impact of his cognitive, psychological, and physical impairments render him completely unable to return to any form of work in the competitive market place. The Applicant stated that he thought occupational therapy was going to be a huge help for him, but it didn’t last long and was terminated by State Farm before he got into any meaningful planning about his rehabilitation. He testified he is no longer applying for jobs because Dr. Garcia, Dr. Quon and Dr. Mendella have all told him that he shouldn’t be working or even looking for work.

Mr. Chris Evelyn - Long-time Friend of the Applicant

Mr. Evelyn testified that he had known Mr. Sabadash between 25-30 years. They used to regularly play sports together, including hockey, baseball, softball, golf, and socialize in general. Before the accident, Mr. Sabadash was an exceptional athlete. The Applicant used to be a great golfer and won money on local tours, whereas now he can hardly swing a golf club. Since the accident, Mr. Sabadash has discomfort even getting out of his car. It looks like he may not even land on his two feet trying to get off a bar stool. Mr. Evelyn stated that the Applicant often complains about pain in his hip and back and ringing in his ears. Mr. Sabadash appears totally different after the accident. He’s not energetic and often looks like he is ready to lie down and go to sleep. He looks depressed.

The witness testified that he used to consider Mr. Sabadash to be very articulate. Now, Mr. Sabadash pauses during speech and sometimes looks like he can’t find the word he is looking for. Post-accident, the Applicant limps when he is walking and his balance is horrible. The Applicant no longer goes on the ice to coach his daughter because of the risk of him falling on the ice. Mr. Evelyn testified that Mr. Sabadash used to be “great to hang out with and a lot of fun”. He was always lively. Now he seems like he has more bad days than good. He seems like an old man now, way beyond his years. He seems sad and depressed… “a shell of himself”.

On cross-examination, Mr. Evelyn testified that he didn’t know Mr. Sabadash suffered from depression before the collision or that the Applicant had been diagnosed with post-traumatic stress disorder (“PTSD”) before the accident.

Dr. Gerd Schneider - Applicant’s Family Physician

Dr. Schneider testified that his records did not indicate any cognitive complaints before the accident, although after the accident Mr. Sabadash complained of difficulty concentrating, headaches, and fatigue. Since the accident, Mr. Sabadash’s diabetes has been as well managed as it has ever been. His glycemic indicators were better after the accident. He gave a treating opinion that Mr. Sabadash’s issues with balance and dizziness were more likely related to the ongoing effects of post-concussion syndrome, in light of the fact these symptoms are now more prevalent than before the accident and his diabetes has been better controlled since the accident.

The witness testified that he initiated a referral to the Ottawa Rehabilitation Centre because he thought Mr. Sabadash’s situation was complex and he hoped that facility would have access to services like physiotherapy and occupational therapy. At the time, he completed the Disability Certificate (“OCF-3”), he didn’t believe Mr. Sabadash was capable of performing any job without extreme difficulty. He indicated “yes” to the test for a Non-Earner Benefit (i.e. complete inability to lead a normal life) in the OCF-3 he completed because “If I had neck stiffness, shoulder pain, visual disturbance, was dizzy, fatigued, couldn’t sleep well, had some joint disturbance, I don’t think I could do very much in a reasonable fashion. I think that’s self-evident”.

Dr. Schneider stated that in the 4 years since the collision, the Applicant’s diabetes has improved but there continues to be consistent reports of post-concussive like symptoms. His treating opinion was that no amount of medication Mr. Sabadash might take could be expected to have a major impact on his employability. The witness also opined that even if Mr. Sabadash did not have any diabetic-related symptoms, it would not make very much difference to his employability because most of the disabling symptoms are due to a brain injury and not the diabetes. Dr. Schneider testified that he believed the Applicant’s head injury has had a greater impact on Mr. Sabadash than a healthy person because of his pre-existing conditions of PTSD and diabetes.

Dr. Andrew Payne - Applicant’s Treating Psychologist

Dr. Payne testified that when he first saw Mr. Sabadash he had considerable symptoms of depression. He reported pain in his neck, hips and shoulders. His treating opinion was that many of Mr. Sabadash’s reported symptoms were typical of someone who had a concussion (pervasive headaches, dizziness, nausea, cognitive difficulties) and anxiety. He drew this conclusion based on his clinical experience treating other individuals with documented concussions. Mr. Sabadash had strong feelings of worthlessness, excessive guilt about how his functioning was affecting his relationship with his daughter, loss of appetite, and significant sleep disruption. Dr. Payne testified that the results from the testing he administered were valid. The Applicant reported to Dr. Payne that being out of work was a huge stressor for him and was causing financial difficulties.

Dr. Payne testified that he formed treating diagnoses of: major depressive disorder; recurrent, severe, adjustment disorder with anxiety and pain disorder. With respect to causation, Dr. Payne opined that these issues arose out of the subject accident. The diagnosis of PTSD was noted to be pre-existing. He classified Mr. Sabadash’s depression as “severe” due to: intense and always present feeling of sadness; pervasive feelings of worthlessness and guilt; and daily suicidal thoughts. According to Dr. Payne, classification of the depression as “recurrent” was attributable to there being two distinct episodes of major depression in the Applicant’s lifetime that were separated by a period of remission of symptoms. The witness testified that the treating diagnosis of adjustment disorder with anxiety (as opposed to generalized anxiety) was based on the anxiety being focused in the areas of health, work, and finance, all of which tie back to the accident injuries and chronic pain issues. The Applicant’s Global Assessment of Functioning Score was assessed at 45, primarily because of his suicidal thinking.

Dr. Payne recommended the Applicant receive occupational therapy because the degree of disability was quite significant, and occupational therapy would address the functional aspect of things that were not addressed during psychological treatment. The initial 20 sessions of treatment were difficult because Mr. Sabadash tended to present as either irritable and argumentative or hopeless and depressed. The Applicant would challenge even basic strategies with questioning, and Dr. Payne stated he believed this was a holdover from Mr. Sabadash’s past of being very practically-minded and problem-solving-oriented. The Applicant would also often have trouble following what was being said, or would be trying to describe something and just blank out and be completely unable to recall. In terms of symptoms, Mr. Sabadash did not show much improvement after 20 sessions. There was some improvement from an insight perspective.

The witness testified that one of the primary barriers to the Applicant’s treatment is the ongoing nature of the stress the Applicant was experiencing. His physical pain was continual and the financial issues were ongoing. He also presented with anger, irritability and agitation, which was attributable to the consistent physical pain, anxiety and trauma-related symptoms. There was a point in treatment where Mr. Sabadash looking for work became almost like an obsessive anxious driven activity where he couldn’t stop thinking about it, and Dr. Payne felt this was amplifying his stress overall.

According to Dr. Payne, the prognosis is that Mr. Sabadash will make fairly minor progress overall. There has been no indication of improvement so far and it would be expected that more meaningful progress would have been seen by now if it was going to happen. Unless the other symptoms can be addressed, the goal will be management more than treatment. Dr. Payne testified that his observations of Mr. Sabadash during treatment were consistent with his test results which led to a conclusion he was not “over-reporting” his symptoms.

Dr. Paul Mendella – Neuropsychologist

Dr. Mendella testified that Mr. Sabadash’s validity testing for psychological symptoms was valid, but the testing for cognitive symptoms was invalid. He explained that a patient can have bona fide symptoms in conjunction with over-reporting, as they are not mutually exclusive. He formed diagnoses of major depression, PTSD, and pain disorder. He also concluded that Mr. Sabadash likely suffered a mild traumatic brain injury (“TBI”) in the accident, but that the ongoing cognitive symptoms were more likely related to the ongoing psychological conditions. He found the current depression issues to be directly related to the accident, and specifically Mr. Sabadash’s reduced abilities to function. There was also no indication of a previous pain disorder. Dr. Mendella testified that people with depression often report problems with attention and memory and people with chronic pain frequently report problems with attention, memory, and other aspects of cognitive functioning.

The witness testified that “post-concussion symptoms” in a case like Mr. Sabadash’s typically relate to things like headaches, dizziness, memory problems, cognitive problems, irritability, depression, anxiety, sleep problems and fatigue. Mr. Sabadash complained of headaches, ringing in his ears, balance problems, irritability and mood issues and cognitive symptoms. The witness opined that it is accurate to characterize the Applicant’s situation as someone suffering from “post-concussion syndrome”. Whether these symptoms are caused by a brain injury or psychological symptoms, they are every bit as impairing to the individual.

At the time of his second assessment, Mr. Sabadash reported further impaired cognitive symptoms (specifically those related to attention and concentration). He also reported greater difficulties with stuttering. Noted areas of impairment during the assessment were: pain limiting functional tolerances; being easily fatigued, which would affect his ability to persist at tasks; depression, lowering his motivation; the ability to initiate activities and derive enjoyment (allowing him to follow through) is comprised; it is expected he would have trouble interacting with people. Dr. Mendella opined that people with histories of trauma and/or psychiatric problems who then develop a pain disorder are at a higher risk for disability and are more likely to have a bad outcome. In Mr. Sabadash’s situation, the threshold for managing his anger and irritability was reduced by the addition of a chronic pain disorder and depression arising from the accident.

Dr. Mendella stated that in his review of Dr. Garcia’s report, she did not seem to give consideration to the ongoing post-concussion syndrome, and he queried whether that might impact her conclusions. He believes Dr. West’s report is inconsistent in concluding that “there are no limitations or restrictions” on Mr. Sabadash from a mental health perspective, while also recommending psychology and occupational therapy.

Dr. Mendella opined that Mr. Sabadash was not able to return to any type of gainful employment. Any attempt to work would be counter-productive because putting the Applicant in a work position exposed to stress will aggravate his pain, depression, irritability and cognitive symptoms. He recommended occupational therapy because for someone with a chronic pain disorder and depression, it is essential to try to improve their overall functioning and learn strategies to manage their chronic pain, as well as introducing structure and routine into their life. The combination of sleep problems, reduced stamina, fatigue, pain, post-concussive symptoms, emotional difficulties and cognitive problems would lead to a problem in maintaining regular hours and working consistently throughout the day.

Dr. Mendella testified that it would also take the Applicant longer to get things done, and he would have difficulty learning new things because of his preoccupation with his pain and fatigue. He would have difficulty with things like multi-tasking, dealing with distractions and difficulties with interpersonal relationships. The psychological prognosis was guarded and it would be unlikely in the future he could return to a managerial position or self-employment. Both of these environments require someone to manage multiple things at the same time, and require motivation, follow-through and drive. Mr. Sabadash would have problems sustaining these types of activities. At the conclusion of his evidence, Dr. Mendella invited the room to “picture an extremely fatigued, irritable, depressed person in pain and how they would function in your workplace”.

Ms. Andrea Genereux - Vocational Rehabilitation Specialist

Ms. Genereux testified that she is a Vocational Rehabilitation Consultant who has been practicing since 2000. She has spent her entire time in this industry in the Ottawa marketplace. She was hired in the past by State Farm to train their adjusters on vocational and psycho-vocational assessments.

The witness testified that she conducted her aptitude testing over two sessions after she noticed Mr. Sabadash become tired, fatigued, fidgety, uncomfortable and stuttering during the first day of testing. She noticed his attention to focus on the testing decrease over time. When Mr. Sabadash stood up at the end of testing, he stumbled sideways and complained of dizziness. He often asked for a question to be repeated and sometimes had trouble finding the correct word.

Ms. Genereux stated that Mr. Sabadash reported to her that he returned to work after the accident purely for financial reasons. He reported problems with thinking and decision-making upon his return. The Tyco position that was described to her was atypical of the Ottawa marketplace, and wouldn’t be found often if at all. Mr. Sabadash reported doing piecemeal work for a couple of hours per day, with the ability to nap as needed. Her conclusion was that he was only doing a piece of the work that type of job should have required. There is no job available she is aware of that is equivalent to what Mr. Sabadash did at Tyco. No other positions would give him the opportunity to self-moderate and sleep as needed, or to receive a full-time salary for working part-time hours. Most comparable positions require an individual to be present in an office environment throughout the day. The communication and organizational skills required would be beyond what his test results revealed. The ability to work from home is often something that is earned over time, and is rarely available to someone just starting a position. The National Occupation Classification for the Tyco position was similar to being an account manager, and Mr. Sabadash’s aptitude testing results showed that he did not meet the required aptitudes to do this work. The profile is assembled based on the requirements of the position, not what an individual may have done at the job. When comparing Mr. Sabadash’s current profile (how he performed in testing) to his composite profile (the levels he should achieve given his past work history), there are several inconsistencies. His current profile suggests he would not meet the minimum aptitude levels required for his pre-accident position with Makita or his post-accident employment at Tyco. His abilities to command communication and problem-solve would not be where they need to be.

Ms. Genereux explained that the general learning ability aptitude is the key indicator in these tests and indicates the Applicant’s ability to learn on the job. Mr. Sabadash would be expected to perform poorly at learning and retaining new information, based on his test results. It would also impact his ability to problem solve. Mr. Sabadash would appear to be a strong employment candidate on paper given his resume and past work history; however, his testing suggests he would not function well in the workplace. Aptitude testing revealed a general learning ability of below college level, which would mean the Applicant would only be suitable for direct entry jobs. His verbal aptitude also tested at this level. These results were inconsistent with his vocational history and the fact he had worked in managerial positions and ran his own business. His spatial aptitude, which includes the ability to think in three dimensions, problem solve, and think outside the box, was lower than expected given his history as a manager. The transferable skills analysis theory and skills vocational projection theory typically involves looking at a person’s 10-year previous work history. Beyond that time frame is generally not taken into consideration.

Ms. Genereux emphasized that the Tyco position was an anomaly in the Ottawa work force. She indicated that from Mr. Sabadash’s reports of what he did, he was only doing a piece of what that type of occupation can normally be expected to have to do. Her conclusion was that Mr. Sabadash was not fit to return to the competitive workforce at the time of her assessment. Her overall conclusion from her assessment was that the Applicant was unemployable in any position he might reasonably be suited for at the time of testing. His vocational prognosis is guarded. His fatigue, pain, and frustration levels would also impact his marketability and ability to sustain employment. Ms. Genereux advised that her conclusions incorporated the aptitude testing results, her observations during testing, her experience conducting these tests over 15 years, the available medical information and reported psychological, cognitive, and physical limitations, and her knowledge of the Ottawa job market. She conducted an in-depth labour market review of jobs within the Ottawa region, and her search yielded zero positions that would be suitable for Mr. Sabadash, given his aptitude profile.

The witness further explained that the testing she administers can stand on its own to derive conclusions about employability. However, in Mr. Sabadash’s case, her conclusions were strengthened by the neuropsychological testing completed by Dr. Mendella and the conclusions of Drs. Simard and Aubry (Insurer’s assessors) that the prognosis for his physical injuries is guarded. In the vocational profession, she is required to consider status and remuneration as well. Mr. Sabadash’s past managerial work would impact on what is considered a reasonable alternative. The General Learning Ability scores that Mr. Sabadash received on her assessment indicated that he would have a problem with data retention. The witness stated that occupational therapy would help with accommodations and cognitive management of Mr. Sabadash’s current barriers.

Mr. Stan Sauer - Manager of Corporate Administration for Makita Canada

Mr. Sauer explained that Mr. Sabadash was hired after a competitive interview process involving 20 direct applications and 3-4 Applicants identified by a recruiting company. Mr. Sabadash was given a one-week trial run at the repair center before the formal offer of employment was extended. In that one-week trial, Makita decided the Applicant demonstrated a comfort level working at the service centre (the technical side) and dealing with customers (the administrative side). They were reasonably confident that Mr. Sabadash could learn tool repairs on the job. This confidence came from Mr. Sabadash’s technical background in the computer industry. The Applicant also presented as someone with “very good” management experience.

The witness explained that Makita expected responsibility for tool repair to be a 60/40 split between the technician and the manager, respectively. Instead, over the course of the Applicant’s employment, it ended up being more like a 90/10 split. Management received consistent reports that Mr. Sabadash was having difficulties learning about tool repair throughout his employment with Makita. There were also consistent reports of Mr. Sabadash not maintaining a good working relationship with the technician he supervised. Mr. Sabadash was fired for non-performance, the main issue being his demonstrated inability to learn about Makita’s tool products and how to repair them. The witness advised that those aspects of the operation are critical to Makita’s business and no employee could stay in the Applicant’s role unless he could perform those essential tasks.

Mr. Sauer also explained that Mr. Sabadash had no paid medical leave available to him for the first three months of employment.

Dr. Curt West – Psychologist

Dr. West opined that Dr. Mendella’s reports are usually excellent reports and that Dr. Mendella is a very competent doctor. The witness noted that Dr. Mendella administered the MMPI-2-RF test, which is an excellent objective measure of validity. Dr. Payne used the PAI and MCMI-III tests, which are two good comprehensive objective measures with built-in validity testing.

Dr. West acknowledged that his own report was unclear, and potentially misleading, because it could give the reader the impression that he was of the opinion that Mr. Sabadash was malingering (i.e., deliberately faking/exaggerating his symptoms for secondary gain). Dr. West explicitly confirmed that it was not his opinion that Mr. Sabadash was a malingerer. He confirmed that he did not believe there was any intentional effort by Mr. Sabadash to exaggerate his symptoms. He acknowledged that over-reporting can coexist with genuine symptomology.

Dr. West also denied that his report offered any specific opinion on causation. He was asked to consider that this contradicted the wording of his written report wherein he stated: “…I do believe he has suffered an impairment as a result of the subject motor vehicle collision”, in direct reference to his diagnoses of Pain Disorder and Adjustment Disorder. He confirmed he did not think the accident was much of a factor in Mr. Sabadash’s presentation.

Dr. West acknowledged that he was a certified neuropsychologist, although he did not provide any discussion of the possibility of a prolonged post-concussive syndrome despite documenting the following symptoms reported by Mr. Sabadash: constant headaches; a cloudy feeling in his head; decreased short term memory; poor sleep; balance issues; and tinnitus.

Dr. West explained that while he was concerned about “over-reporting/symptom amplification” in Mr. Sabadash’s case, providing any psychological diagnosis involved a subjective exercise of judgment, and it was his opinion that in the Applicant’s case there were bona fide symptoms evidencing a diagnosable condition - i.e., a pain disorder and adjustment disorder. He declined to diagnose major depression while acknowledging that depressive elements were present and every other psychologist who had seen the Applicant had diagnosed major depression. The opinion in his report was that Mr. Sabadash was not reporting any limitations or restrictions directly attributable to factors of mental health etiology. The witness was questioned with regard to Dr. Mendella’s testimony that this statement was inherently inconsistent with a diagnosis of pain disorder (which Dr. West diagnosed), which requires a finding that “psychological factors are judged to have an important role in the onset, severity, exacerbation, or maintenance of the pain”. Dr. West explained that he “felt bad” for Mr. Sabadash, and was erring on the side of caution.

The witness went on to give an opinion that Mr. Sabadash could work despite reporting to him that he was fired from Makita for interpersonal reasons. When asked what he knew about Mr. Sabadash’s work at Makita at the time of his assessment, Dr. West replied “probably nothing”. The witness acknowledged that although he certainly used the fact Mr. Sabadash went on to work at Tyco as support for his conclusion about the ability of work, all he remembered being told by Mr. Sabadash with regard to Tyco was that “he liked the job”. He acknowledged not knowing that Mr. Sabadash actually spent on average 15 hours per week working, with no time pressure, no requirement to interact with co-workers or managers, and that he had the option of doing nothing at all on some days. Dr. West acknowledged all of these things could affect his opinion, and that his opinion was influenced at the time of the assessment by the fact he knew that Mr. Sabadash was gainfully employed. He acknowledged that he didn’t go beyond learning that Mr. Sabadash was fired from Makita and laid off from Tyco when considering his post-accident employment and how that affected his opinion about his ability to work.

Dr. West acknowledged that he included recommendations for psychological therapy, occupational therapy, and vocational therapy in his report.

Dr. Tilak Mendis – Neurologist

Dr. Mendis confirmed his diagnoses of a mild TBI and post-traumatic headaches caused by the accident. He confirmed that Mr. Sabadash was reporting the following symptoms which are typically associated with a post-concussion syndrome: headaches; dizziness and disequilibrium; issues with memory; ringing in the ears. By the time of his first assessment in April 2013 (25 months post-accident), Dr. Mendis gave the opinion that there had only been a partial recovery of the TBI, meaning that Mr. Sabadash’s symptoms still persisted. The witness noted impairments to memory, concentration, and attention at that time. His opinion was that psychological factors were prolonging Mr. Sabadash’s recovery from the brain injury. He confirmed that regardless of whether the cause of the impairments at any given time was neurologically or psychologically driven, they were equally impairing to the individual. He also confirmed that both depression and PTSD can predispose an individual to having a worse outcome from a mild TBI.

Dr. Mendis acknowledged that his opinion on Mr. Sabadash’s ability to work was based on a strictly neurological point of view. Even though there were consistent reports of ongoing post-concussion like symptoms, Dr. Mendis felt that psychological factors were the primary cause for the prolongation of these symptoms beyond the normal recovery time of 3 months. He could not consider these symptoms/impairments when giving his neurological opinion. Dr. Mendis explained that, put another way from a strictly neurological perspective, the symptoms should have resolved within 3 months. However, Dr. Mendis acknowledged they were persistent, and attributed this to psychological factors. He opined that the mild TBI was the triggering event for these impairment areas, and if Mr. Sabadash had not had the TBI he would not have these symptoms, whether or not psychological factors were continuing to perpetuate them at this time. He noted that Mr. Sabadash’s impairment areas of memory, concentration, and attention could impact someone’s ability to learn and retain new information, as well as interfere with the ability to make decisions in a workplace setting. The witness acknowledged that a neuropsychologist was in a better position to give an opinion about the overall impact of the symptoms experienced by Mr. Sabadash, or anyone who has a mild TBI with co-existing and/or pre-existing psychological issues. Dr. Mendis agreed that Dr. Mendella had expertise in commenting on the impairments caused by a concussion.

Dr. Mendis testified that Mr. Sabadash reported being fired because of changes in his behaviour. Specifically because he was being “very irritable and short” with customers and with other staff, and this caused problems at work. His report also includes reference to Mr. Sabadash’s efficiency dropping at work. Dr. Mendis confirmed that he was familiar with Dr. Mendella’s expertise in concussions, and acknowledged that a neuropsychologist was in a better position than a neurologist to give an opinion on the overall level of impairment suffered by an individual who had sustained a brain injury along with co-existing or pre-existing mental health impairments. Dr. Mendis confirmed that seeing Dr. Mendella’s opinion about Mr. Sabadash’s ability to work did not change his opinion in his addendum report because he was restricting his opinion solely to impairments he believed were only neurological in nature, and Dr. Mendella was also considering psychological issues. When asked if the information from Mr. Sauer that Mr. Sabadash was fired because of an inability to learn how to repair tools changed his opinion, Dr. Mendis responded that if the trouble with memory was caused by psychological factors, he would have to defer that opinion to a neuropsychologist. He confirmed he would not be surprised if the types of symptoms Mr. Sabadash reported had impacted his level of efficiency or ability to make decisions at work, or that it would impact his mood at work. He acknowledged that the position at Tyco influenced his opinion on employability, but also confirmed that he did not know a great deal about that work, and in fact only knew the name of the company and the fact that it was a security firm.

Dr. Mendis was specifically asked a series of questions in cross-examination with respect to his reports and his evidence in-chief on the issue of causation. The following are excerpts from the transcript of Dr. Mendis’ testimony on re-examination:

Mr. Gilhooly: The symptoms that you list doctor as reported by Mr. Sabadash in April, 2013 and again in January, 2014 that my friend took you to in cross­ examination including symptoms of loss of memory, concentration and attention that affected allegedly his tool repair job, were any of those symptoms in your opinion as a neurologist due to organic brain injury or something that was neurological in nature?

Answer: No. I didn't find any evidence of a neurological injury that would explain those symptoms.

Mr. Gilhooly: In your opinion were any of those symptoms therefore caused by the accident as of when you saw him as of January, 2014?

Answer: No. Again I would go back that word which I didn't use in my report that I should have used which is triggered. The symptoms may have been triggered by the concussion but it did not explain why he was having those symptoms when I saw him.

Mr. Gilhooly: In April, 2013, in January, 2014?

Answer: That's right, yes.

Mr. Gilhooly: It didn't explain the prolongation?

Answer: It did not explain the prolongation. A neurological injury did not explain the prolongation.

Mr. Gilhooly: As of January, 2014, the last time you saw him, in your opinion what would explain all of those symptoms that are listed as of that date?

Answer: I would say that as of that date it would be on the basis of psychological issues.

The Arbitrator: I am still grappling with when you used the word trigger. Can you elaborate on what you mean by that?

Answer: What I was trying to say is that even if an individual had psychological problems before, these particular symptoms may not have occurred had the accident not occurred or rather the concussion not occurred and therefore it was a trigger that produced these symptoms.

Mr. McCarthy: You were answering the question for the Arbitrator on defining trigger. Could the symptoms of loss of memory, concentration and attention which apparently were the reasons why he was fired from the tool repair job, can those exist without any organic brain injury ever having occurred even as a trigger?

Answer: Yes those could certainly occur.

Mr. McCarthy: Can they occur due solely to psychological issues?

Answer: Issues with memory, concentration, attention can certainly occur with psychological issues such as depression.

Mr. McCarthy: Even without trauma from a car accident?

Answer: Even without trauma from a car accident yes.

Dr. Margaret Navarro - Applicant’s Treating Psychiatrist

Dr. Navarro testified at the Hearing, but almost all of her evidence was presented in the form of her clinical notes and records with regard to her treatment of the Applicant. In its written submissions State Farm highlighted the following from those notes and records.²

On August 20, 2010, Dr. Navarro notes:

Patient then said that since his last appointment business was bad, his income is not enough to sustain himself and although previously he and the company spoke of the issue as a shared problem when he went to a meeting two weeks ago, the others spoke of it solely as his failing. It was suggested he may have to go back to just being an agent. He was so taken off guard he largely kept quiet but he came home acutely depressed and that is when he initially called.

Three weeks later on September 10, 2010, Dr. Navarro wrote as follows:

Patient explained how he had negotiated a deal with expanding his territory and how he would get paid for enlisting retailers. Just then the company hired a business development man who scaled back his contract and also put in policies that would not help enlist retailers. Patient is broke, is borrowing money, has lost motivation for his job, is looking for other work and is basically lost in terms of how he will sustain himself.

On September 20, 2010, the Applicant admitted to his girlfriend that he had "financial issues". Dr. Navarro references a plan, using his RSPs and he did say he has to find another job. He borrowed $17,000.00 just to cover basic expenses.

On September 24, 2010, he discussed with Dr. Navarro plans to put his house up for sale and to apply to 15 part time jobs. In reference to comments made by the Applicant, Dr. Navarro writes: however he works the numbers he feels he will end up with much less one way or another. Often he expressed anger towards the current realities of our financial/workplace system.

On October 4, 2010, after listing his home for sale, the Applicant indicated that, I thought I was at bottom before but I am really at bottom now. He opined that he thinks selling is the only long term option when he considers the insecurity of his income generating potential. Dr. Navarro notes that he is looking for work and still working with the product he has been involved with since last year.

On October 15, 2010, Dr. Navarro and the Applicant spoke of his work expressing frustration with a lack of direct information at his place of employment. Dr. Navarro noted:

He suspects he is getting cut out on commission of some sales. He feels in a no-win situation because if it were time he confronts the issue, he cannot see himself coming out better. He cannot afford the gas to see these dealers directly except those perhaps in Cornwall.

Dr. Navarro referenced seeking assistance through Service Canada. She writes:

He told me of not taking EI after losing his job because he was going to try his own business. He went back now and was told he can no longer qualify because he was self-employed. In terms of training he said any Arab could come here, get schooling, housing and an income but he, having contributed all his life to the system, cannot have access, not to French language training, not to other training. He left clearly enraged with the injustice of this.

On October 22, 2010, the patient was noted to be dressed up and going to an investor's recruiting meeting but looking thin and drawn. He admitted to increasing blow ups with frustrations like when he spilled his tea getting into the car. He threw the cup, banged down, hit something, and said some choice words, all with daughter in the car. He also spoke of his brain being like mush, not thinking right. He knows he should be on meds. Divalproex, a very cheap medication, was reordered and Dr. Navarro apparently provided him with $40.00 to cover it. On October 29, 2010, Dr. Navarro's notes reference several work interviews. The patient is quoted as stating:

I am seeing my life as over. I'll never have goals like before if I reach retirement age. I don't see how I will take care of myself by then, I won't be able to attract a partner - what have I got to offer?

On November 5, 2010, Dr. Navarro notes:

The patient looking tired and wrinkled and worn, and although he felt that some things were going in the right direction: interviews around job prospects, getting the house inspection done with approval, getting to feel a real friendship with neighbour ...there was “the sense of real financial peril” is still there.

Just one week later on November 12, 2010, the patient said he was not doing well, i.e. nothing was happening with either work or with the sale of his house.

On November 19, 2010, the Applicant spoke of starting training for a superintendent position at $10.00 per hour. Dr. Navarro quoted the Applicant:

It is the most demoralizing thing I have ever done, having to work with smokers, having to do as little as possible to get away with. He was near tears and he feels that way each time he faces what he is doing at this point in his life.

On November 26, 2010, "the demoralizing superintendent work" is mentioned again. In reference to his comments, Dr. Navarro writes:

Maybe it is just his record in recent years, but by last evening he was feeling stupid to think he could succeed, it is always just a matter of time before he screws up, so what is the point. Financial strain is just escalating and it feels like a sinking ship.

In December 2010, anti-depressant medication was discussed and an increase in Divalproex was prescribed, as was Epival in January 2011. On January 25, 2011, a possibility of a steady job loomed but it is noted that he did the tool repair job last week for a week and it was likely that the stress of that that made his blood sugars go off the rails.

The accident occurred March 3, 2011 and at his next visit on October 13, 2011, there is no mention of the accident seven months earlier. The October 13, 2011 entry includes the following:

We had exchanged text messages in May or June when the patient told me he hated his job because of this grumpy man he had to work with but otherwise life was going on. His house never sold or even had an offer. Patient called last week to say he had just been fired. Patient expressed to me depressed but he said today he is not, he has looked over the time he spent with this company and he does not feel he did anything wrong.

The note also includes the following:

Two weeks before the firing the patient's boss finally told this employee that the patient was his boss, that he was very good and had exceeded all expectations and he would have to answer to him. Then he was fired for not being a strong enough manager to handle such an employee. The patient will discuss the dismissal with a lawyer.

Upon getting legal advice, it was recorded on January 9, 2012:

He was coming from a job interview. This was a place that had offered him a job last year at $18.00 per hour. This year it is $15.00 per hour because the workers are unionized and there is an entry level rate imposed...the patient said he would consider it also because he has given up on himself...patient did see a workplace next to his last place of employment and learned that the technician responsible for his job loss is now coming into work intoxicated and feeling invincible. He knows his previous employer has nearly no business left which feels good. Patient has learned from the lawyer that one can be fired without cause or a chance to respond to negative findings.

At the end of the month on January 30, 2012, Dr. Navarro noted: patient was feeling things piling up on him with constant job rejections anyway and then this past weekend he was intensely hurt by actions of his best friend.

On April 30, 2012, Dr. Navarro quotes the patient, “I'm doing well”, but also notes that:

The patient is totally demoralized, extremely bitter and resentful as he deals with no prospects for work. The bilingual issue is a thorn in his side. He feels refugees get all kinds of help that he cannot access. He referenced that he cannot be sponsored by EI or retraining because of his history of well paid jobs. He feels trapped by the house which will disqualify him from getting welfare and that his relationship is suffering because of financial constraints. EI just finished.

The accident of March 3, 2011, is not even mentioned to Dr. Navarro until July 11, 2012, sixteen months after the fact.

On April 4, 2013, it was noted that computer problems were such that the Tyco IT Department took possession of Mr. Sabadash’s computer and he learned that all of his files had been lost. He felt that he was getting behind and had lost the record of past projects which was unsettling. On May 2, 2013, he was reported to be bored at work and essentially not working enough which had Dr. Navarro worried. Then on May 16, 2013, it was confirmed that he had been laid off. His boss and twelve others in his department were also laid off. He planned to begin applying for work again. The search for work is noted on May 29, 2013, but the anxiety was overwhelming. After receiving his last pay, he refused to sign a document indicating that he would not work in a similar company. On June 13, 2013, there is the following entry:

Patient said he was okay. He had decided to give himself time off to get better from the accident fallout so he was not stressing over work. He said he still looks at the postings daily but he is not anxious about applying. He is on the verge of settling with the security company. By the end of the month he will Florida time with daughter.

On July 25, 2013, another note is contained in Dr. Navarro's records:

Testing has not validated a big problem in any way - everyone says he can work. A recent PT assessment which suggests there are problems and with the OT assessment as well. He is less avoidant of looking for work and had a good online interview on July 22, 2013. The job if offered would mean going to Toronto so he does not really see that happening.

However, Mr. Sabadash then goes on to state to Dr. Navarro on August 29, 2013 that, “work is impossible to find”.

On the previous visit of August 14, 2013, it was noted that: patient is looking for work. He finally got the last pay from his last job so at the moment he has some money but overall he is $500.00 short on a monthly basis.

Dr. Navarro testified at the Hearing that it was her understanding from Mr. Sabadash that he did not see her between the accident and October 2011 because he was afraid of taking any time off from work. When addressing why the accident was not reported to her (as reflected in her records) until July 2012, her evidence was that Mr. Sabadash thought that her function was to deal with his emotional issues and past trauma issues and not issues related to the accident such as pain.

Ms. Alison Stere - Attending Paramedic

Ms. Stere testified with regard to her observations at the time of attending at the scene of the Applicant’s accident. The relevant portions of her testimony are common ground between the parties, and are contained within the background facts noted above. Accordingly, I believe no further detail is required.

THE ISSUES

INCOME REPLACEMENT BENEFITS

The Legislative Scheme

The relevant sections of the Schedule are as follows:

5. (1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:

6. The insured person,

i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment, or […]

6. (1) Subject to subsection (2), an income replacement benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his or her employment or self-employment.

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

(a) for the first week of the disability; or

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

Submissions Regarding Ability to Work

With regard to the pre-104-week test (s. 5 of the Schedule, above), Mr. Sabadash states in his written submissions that:

…there is overwhelming evidence upon which to conclude that he was fired from Makita because of injuries sustained in the accident. There is no better evidence of whether an individual is substantially unable to complete the essential elements of a job than the fact that the employer fired them because of their demonstrated inability to complete the key tasks of that employment.

With regard to the post-104-week test (s. 6 of the Schedule, above), the Applicant states in his written submissions that:

…upon weighing all of the available evidence, including the expert opinions of Dr. Mendella and Ms. Genereux, the treating opinions of Dr. Quon from the rehabilitation centre, and Mr. Sabadash’s consistent reports of pervasive impairments to his psychological, cognitive and physical capacities over the past 4 years and counting, the balance of probabilities supports a find that Mr. Sabadash is completely unable to engage in any employment in the Ottawa market place for which he might be reasonably suited.

State Farm provided no direct submissions with regard to the pre-104-week test. With regard to the post-104-week test, the following written submission was made:

The evidence is not in dispute insofar as the Applicant's work history and it is important to note that when the accident occurred on March 3, 2011, he had not been employed at his new place of employment for very long. He returned to work immediately after the accident but was terminated seven months later, before year end of 2011. He then took on employment at Tyco for almost one year. The fundamental flaw in the submission made by the Applicant is that the submission mirrors a loss of competitive advantage claim that is a tort damages remedy. This is not an appropriate remedy insofar as recovery of income replacement benefits under the Statutory Accident Benefits Schedule is concerned. The Schedule provides for two years of income replacement benefits from one-week post-accident to the 104-week mark if there is, as a result of the accident, an impairment directly related to the accident that causes a substantial inability to perform the insured's pre-accident job. After 104 weeks, there must be an impairment directly caused by the accident that prohibits the insured from engaging in any occupation or employment for which he is reasonably suited by education, training or experience. Being unable to competitively engage in the marketplace does not justify an award based upon the strict post-104-week test.

Analysis Regarding Ability to Work

I am in agreement with the Applicant with regard to him meeting the pre-104-week test in terms of his ability to work. State Farm appears, by the fact of making no submissions on the issue, to at least tacitly concede to Mr. Sabadash’s argument.

In Henry and State Farm Mutual Automobile Insurance Company,³ Arbitrator Ashby summarized the relevant considerations to addressing the issue of what employment an Applicant might be considered “reasonably suited to” pursuant to s. 6 of the Schedule:

The Schedule sets out three levels of impairment: substantial inability, complete inability and catastrophic impairment. The complete inability test falls between the less onerous substantial inability test and that of catastrophic impairment. The analysis of whether an applicant demonstrates a complete inability to engage in suitable employment must be fair and realistic when considering the applicant’s educational and employment background. Consideration must be given to the functional abilities of the applicant to engage in work reasonably suited to the person’s age, the nature of the work, the status it affords, level of remuneration and market considerations.

With regard to the post-104-test, I disagree with the Insurer that the evidence only “mirrors a loss of competitive [job market] advantage”. In coming to that conclusion, I find that the un-disputed expert testimony of Vocational Rehabilitation Consultant Andrea Genereux is virtually determinative of the issue - i.e., her overall conclusion from her assessment was that Mr. Sabadash was unemployable in any position he might be reasonably suited for at the time of testing.

I reject State Farm’s argument that the fact of the Applicant’s employment with Tyco is indicative of his overall employability. Ms. Genereux confirmed that what Mr. Sabadash reported doing at Tyco was not indicative of the requirements of a normal management position consistent with that National Occupation Classification. In fact, the Applicant was only doing a portion of that job and this meant she could not consider it in her vocational evaluation. In her opinion, the Tyco position was an anomaly in the Ottawa market place and was unlikely to be replicated in the future.

In sum, I find that Mr. Sabadash meets the test for an Income Replacement Benefit both pre- and post-104-weeks with respect to his ability to function in the workplace.

Submissions Regarding Causation

In its written submissions, State Farm notes “It is the position of the insurer that in determining all issues, causation is the fundamental issue that divides the parties”.

The Applicant submitted that, pursuant to the jurisprudence, in determining whether or not an Applicant has, in the words of ss. 5 and 6 of the Schedule, “sustained an impairment as a result of an accident”, “all of the evidence must be assessed, bearing in mind the well-established ‘material contribution’ test for causation”.⁴ Mr. Sabadash also argues that the case law is clear that “An applicant is not required to prove that the accident was the only cause of his mental or behavioural disorder. He is required to prove that the accident materially contributed to it”.⁵ Concomitantly, the Applicant submits that the “but for” test set out by the Supreme Court of Canada in Resurfice Corp. v. Hanke⁶ is confined to cases involving negligence claims, and not to cases involving statutory accident benefits.

The Applicant also submitted that according to the decision of the Ontario Court of Appeal in Monks v. ING,⁷ where a claimant’s impairment is established via either the “but for” or “material contribution” causation tests to have resulted from an accident in respect of which the claimant is insured, the Insurer’s liability is engaged pursuant to the Schedule. Finally, Mr. Sabadash argues that, again according to the decision in Monks v. ING,⁸ any causal factor outside the de minimis range would be found to meet the material contribution test.

In its submissions, the Insurer took the position that the “material contribution” test as articulated by the Court of Appeal in Monks v. ING⁹ should be reconsidered in light of the subsequent decisions of the Supreme Court of Canada dealing with causation in accident negligence cases. State Farm argued that the “but for” test endorsed by the Supreme Court in Resurfice¹⁰ and Clements v. Clements,¹¹even though decided in the context of tort liability, should also be applied to statutory accident benefit cases. The Insurer submits that the Ontario Court of Appeal endorsed the exclusive use of the “but for” test in Blake v. Dominion of Canada General Insurance Company.¹² State Farm argues that the reasons in Blake v. Dominion¹³ should be construed to mean the Court of Appeal has decided that all Schedule disputes must henceforth be determined on a “but for” test. The relevant portion of the Blake v. Dominion ¹⁴ decision is as follows:

70Ms. Blake submits that the trial judge erred in failing to apply the material contribution test to the issue of the causation of her post-accident symptoms. I do not accept her submission.

71The primary reason for not accepting Ms. Blake’s submission is that she is raising the issue for the first time on this appeal. At trial she did not make submissions on which causation test should be applied. That distinguishes this case from the circumstances in Monks v. ING Insurance Company of Canada, in which this court held that having advocated at trial for the adoption of the material contribution test in a statutory accident benefits case, the insurer could not fault the trial judge for applying the test.

72Here, Ms. Blake did not ask the trial judge to depart from the general “but for” test of causation as described by the Supreme Court of Canada in Clements v. Clements, at para. 46.14. Under those circumstances, I see no error in the trial judge’s having applied the “but for” causation test to the facts of this case….

77In sum, I do not accept Ms. Blake’s submission that the trial judge erred in applying the “but for” causation test in the circumstances of this case.

Regardless of the causational standard to be applied, State Farm argues in its written submissions that the Applicant is:

…a man in decline in terms of his desire to work or maintain employment or productive self-employment…. Factors that have nothing to do with the accident are the only reason behind the applicant's failure to maintain any employment for which he is reasonably suited by education, training or experience. His pre-existing psychological state, his dependence upon and over use of medication, his general anxiety, depression and lack of motivation are the only reasons why he has not worked steadily. His position at Tyco for ten months post-accident is evidence of his ability to work at other jobs and his inability to hold that job had everything to do with being laid off due to circumstances beyond his control and nothing to do with any accident related symptoms.

The Insurer also relies on the testimony of Dr. Mendis that Mr. Sabadash’s issues with memory, concentration and attention could have occurred even without trauma from a car accident.

Analysis Regarding Causation

I cannot accept State Farm’s submission that the “but for” test endorsed by the Courts in accident negligence cases is to be applied to determination of causation in the statutory accident benefit context. I find that the correct causation test in determining Schedule benefits is whether or not the subject accident is a “material contributing factor” in the causation of the Applicants’ catastrophic impairment. In support of this finding, I note Lauwers J.’s statement in Greenhalgh v. Douro-Drummer (Township):¹⁵

The task of the court in construing statutory and contractual language in a SABS [Statutory Accident Benefit Schedule] case is radically different from its task in determining liability in a negligence action….“legal causation” for SABS purposes can be quite different than “legal causation” for tort purposes…

With regard to the effect to be given to the decision in Blake v. Dominion,¹⁶ I agree with the Applicant when he argues in his written submissions that there is no clear direction from the Court that the material contribution test is no longer applicable to statutory accident benefits disputes:

If the Court of Appeal intended in Blake to reverse itself and depart from the law it set out in Monks v. ING, just seven years before Blake, it would have stated so with unequivocal certainty. All the Court of Appeal did was confirm that it was reasonable for the trial judge in the Blake case to have applied the but for test, primarily (their words) because the Plaintiff did not raise any objection to it at trial. This is distinguishable from the present case where the Applicant is asking this tribunal to adopt the “material contribution” test...

I also agree with Mr. Sabadash that, with respect to State Farm’s submission regarding a plain language reading of the legislation, the Courts and FSCO have provided an ample body of jurisprudence, as discussed supra, confirming how causation of impairments is to be interpreted in statutory accident benefits cases. The “material contribution” test has been consistently endorsed as a correct legal test for causation. This culminated in the Ontario Court of Appeal’s decision in Monks v. ING.¹⁷ In my view, it is clear that, notwithstanding the Blake v. Dominion ¹⁸ decision, it is still open to a trier of law to apply either the “but for” or “material contribution” test depending on the facts of a statutory accident benefits dispute.

I also accept that “material contributing factor”, as explained by the Ontario Court of Appeal in Monks v. ING,¹⁹ should be defined as any causal factor outside the de minimis range. De minimis is defined as “a trifling consequence and a matter that is so small that the court does not wish to even consider it”.²⁰

The remaining question thus becomes: was the subject car accident’s contribution to the Applicant’s inability to work outside the de minimis range? In my view, the evidence, on a balance of probabilities, supports the finding that the subject accident was a “material contributing factor” in Mr. Sabadash’s unemployability. Mr. Evelyn’s testimony confirmed Mr. Sabadash’s own account that the Applicant was “totally different” after the accident. Dr. Schneider testified that his records did not indicate any cognitive complaints before the accident. After the accident, Mr. Sabadash complained of difficulty concentrating, headaches and fatigue.

As far as the expert medical evidence is concerned, Dr. Mendella’s testimony was that it is accurate to characterize the Applicant’s situation as someone suffering from “post-concussion syndrome”. Dr. West denied that his report offered any specific opinion on causation, but did testify that he did not think the accident “was much of a factor” in Mr. Sabadash’s presentation. In my view, it is fair to interpret this to mean that the accident played some role, beyond the de minimus, in the Applicant’s symptomology. Dr. Mendis’ opinion was that Mr. Sabadash’s symptoms, “may not have occurred had the accident not occurred…and therefore it was a trigger that produced these symptoms…” - i.e., that the symptomology could have developed without the car accident. I therefore conclude that Dr. Mendis’ opinion was neutral on the causation issue.

State Farm points to the fact that the Applicant did not see Dr. Navarro between the accident and October 2011, and did not mention the subject car accident to her until July 2012 as evidence that the accident is irrelevant to Mr. Sabadash’s unemployability. However, I accept the explanations offered by Dr. Navarro that the gap in treatment was because the Applicant did not want to take time off work, and that the delay in discussing the accident was due to Mr. Sabadash’s perception that Dr. Navarro’s function was to deal with his emotional issues and past trauma issues, and not issues related to the accident such as pain. In my view, the interaction with Dr. Navarro, or lack thereof, is in no way probative of the causation issue.

Finally, the Insurer urges me to find that Mr. Sabadash is “a man in decline in terms of his desire to work or maintain employment or productive self-employment…”. I understand this to mean that State Farm is, in essence, alleging that the Applicant is, at least in part, malingering. I reject this submission. There is clear evidence that the Applicant suffers from chronic depression and PTSD. No doubt such symptomology would affect an individual’s motivation, but there is no evidence before me to suggest malingering on Mr. Sabadash’s part. In fact, at least one expert, Dr. West, explicitly opined that the Applicant was not malingering.

I therefore find that the preponderance of the evidence leads to the conclusion that the subject accident was a material significant factor well beyond the de minimis range in the causation of Mr. Sabadash’s inability to work pursuant to ss. 5 and 6 of the Schedule.

MEDICAL BENEFITS

The Legislative Scheme

The relevant sections of the Schedule are as follows:

MEDICAL BENEFIT

15. (1) Subject to section 18, medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric and speech-language pathology services;

(b) chiropractic, psychological, occupational therapy and physiotherapy services;

(f) hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other assistive devices…

(h) other goods and services of a medical nature that the insured person requires, other than goods or services for which a benefit is otherwise provided in this Regulation. O. Reg. 34/10, s. 15 (1).

Submissions

The Applicant makes the following written submissions:

Dr. Mendis acknowledged that a neuropsychologist was in a better position than a neurologist to give a comprehensive assessment of an individual who had sustained a TBI in conjunction with a pre-existing and/or co-existing mental health impairment. Based on the reports available at the time the neuropsychological evaluation was requested (from Dr. Mendis and Dr. Garcia) it was clear that Mr. Sabadash had both a TBI with pain and depressive symptoms. It was therefore reasonable and necessary that Mr. Sabadash receive the benefit of a comprehensive neuropsychological assessment….With respect to occupational therapy, this was recommended and supported by Drs. Mendella, Payne, Quon and West.

State Farm’s written submissions are:

With respect to the balance of the claim for the assistive devices in the amount of $2,176.56, the occupational therapy treatment of $3,597.96 and the neuro-psychological assessment of $1,707.00, it is respectfully submitted that all of these are neither reasonable, necessary nor related to an impairment that was caused by the March 3, 2011, motor vehicle accident.

Analysis

The Insurer has failed to identify any evidence which rebuts the legitimacy of Mr. Sabadash’s Medical Benefit claims on the basis that they are not reasonable and necessary. On the contrary, as the Applicant notes in his submissions, a number of experts have endorsed the Medical Benefit claims. Having rejected State Farm’s arguments with regard to causation, supra, I find that Mr. Sabadash is entitled to receive payment for the assistive devices, occupational therapy, and neuro-psychological assessment claimed in the Application.

EXPENSES:

Expenses shall be payable. I leave to the parties to mutually agree upon an appropriate quantum. Pursuant to the Arbitration Order accompanying this decision, I will remain seized with regard to the quantum of the expenses payable if the parties are unable to agree.

SPECIAL AWARD

The Legislative Scheme

Section 282(10) of the Ontario Insurance Act²¹ provides the statutory basis for me to make a special award:

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

Submissions

The Applicant makes the following written submissions with regard to a special award:

The Respondent has refused to acknowledge the increasingly overwhelming evidence that has accumulated over the last several years which points to the fact that Mr. Sabadash cannot work because of the accident. Instead, they have chosen to stubbornly cling to their initial reports from April, 2013 in support of a denial of any IRBs….

It became clear to the Respondent after the May hearing dates that Mr. Sabadash was fired from Makita because of the exact types of issues his accident-related impairments would be expected to cause in the workplace: an inability to learn and recall new information and dramatically reduced tolerances for interpersonal conflict in the workplace setting….The Respondent has continued to refuse to pay pre-104 IRBs for almost 6 months now and has chosen to have this issue go to determination by the Arbitrator….it is submitted that an appropriate amount for a special award in this case is at the high end of the range, and should be fixed between $25,000 to $30,000. The Respondent knew Mr. Sabadash was fired from his pre-collision employment and failed to take sufficient steps to investigate this. Their own reports in April, 2013 suggested that he was fired for reasons that related to his impairments sustained in the collision. From that time on, they received consistent medical opinion from treating and expert physicians and specialists that Mr. Sabadash was unable to work. By the end of the May, 2015 hearing dates, there could be no logical doubt that Mr. Sabadash was fired because of the impairments sustained in the collision. There could be no better evidence of him meeting the pre-104-week test and yet still the Respondent denies to this day that the Applicant meets that test.

State Farm argues the following in its written submissions with regard to a special award:

…it is the position of the insurer that there is no stubborn, unyielding or unreasonable conduct on the part of the insurer or its representatives that could justify a special award. If no further benefits are owing, then no special award can be ordered payable. On the other hand, even if modest benefits are awarded, a special award is not appropriate given that this was simply a case where the parties had to agree to disagree and seek adjudication of the claim. Apart from the disagreement among experts, there was a serious and justifiable disagreement on causation. In Henry and State Farm Mutual Automobile Insurance Company, (2012) (P12-00006), Director's Delegate Evans overturned a special award in the case where there was a legitimate basis for a disagreement on causation.

Analysis

It is clear from the statutory language that entitlement to a special award is contingent on the Insurer’s behaviour having been “unreasonable”. In Erickson and The Guarantee,²² the Oxford English Dictionary definition of “unreasonable” was relied on. The Arbitrator found that “unreasonable” required: “1. Going beyond the limits of what is reasonable or equitable; 2. Not guided by or listening to reason”.²³ FSCO jurisprudence also establishes that an Insurer’s actions could be determined to have been unreasonable without having been egregious or performed in bad faith.²⁴ In Plowright and Wellington Insurance Company, Arbitrator Palmer described unreasonable behaviour in the withholding of payments as “behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.²⁵

An Insurer’s behaviour aimed at mitigating unreasonableness can also be taken into consideration in ordering a special award. Conceding of benefits payable after the Applicant’s evidence was heard during the Hearing shortens the proceedings, spares having a decision being written on the merits and hence can be seen as mitigating the original unreasonableness.²⁶

In the present case, the Insurer did not concede that any benefits were payable even after the compelling, uncontested testimony of Ms. Genereux that the Applicant was unemployable in any position he might reasonably be suited for. Moreover, at the time of the adjournment of the Hearing in May 2015, the Insurer had completed its viva voce evidence except for Drs. Mendis and Navarro. The Applicant requested interim IRBs until the resumption of the Hearing. State Farm refused the request. On receiving submissions, I ordered the payment of interim IRBs on the basis of the Applicant’s need and that Mr. Sabadash had made out a prima facie case for benefits. Therefore, one can only assume that State Farm believed that its case could be won based on the testimony of the final two witnesses - i.e., that the Arbitrator’s mind would be substantially changed by evidence presented in the final day of the Hearing. In the result, Dr. Mendis’ testimony on the pivotal issue of causation was ultimately, as I found above, neutral. Dr. Navarro’s testimony was only probative of the fact of the gap in the Applicant’s treatment after the accident and the fact of Mr. Sabadash only reporting the accident to her in July 2012. In my view, it was not reasonable for State Farm to think that its final two witnesses would “turn the tide” in its favour.

I have reviewed Director’s Delegate Evan’s decision in Henry and State Farm,²⁷ referred to in the Insurer’s submissions, but find that its primary issue concerned the Applicant’s employability. Hence, I find the Henry and State Farm²⁸ decision of little assistance in the present case where the pivotal issue is the question of the proper causation test to apply.

I also find no mitigating factors in the manner in which State Farm litigated this matter. I cannot agree that there was a “novel legal issue” to be decided or more specifically, a “legitimate basis for a disagreement on causation”. At the beginning of the Hearing, I noted to the parties that I had dealt extensively with the issue of causation in my decision in Ghabn and Dominion.²⁹ Counsel for State Farm in fact appeared to have conceded during the Hearing in May 2015, that the “material contribution” test was the correct legal test for causation.³⁰ The Blake v. Dominion³¹ decision was only brought to my attention at the resumption of the Hearing in October 2015, even though it was released by the Court of Appeal in March 2015.

In the result, the Insurer continues to deny Mr. Sabadash’s claims now that the Arbitration is over, having refused his benefits for over five years. I find that unreasonable. I therefore agree with the Applicant that the special award amount in this case should be at the high end of the range mandated by Section 282(10) of the Ontario Insurance Act.³² I fix that amount at $30,000.00 plus interest in the usual manner.

INTEREST

Interest on the IRB should be calculated in the prescribed manner starting 30 days past the date the claim for IRB was submitted to the Insurer. Interest on the Medical Benefits should be calculated in the prescribed manner based on when benefits would have been payable by the Insurer after the submission of the respective OCF-18s. Due to the complexities of calculating the applicable interest, e.g., compounding amounts, I leave to the parties to determine the appropriate quantum. Pursuant to the Arbitration Order accompanying this decision, I will remain seized with regard to the quantum of the interest payable.

March 7, 2016

Alan G. Smith Arbitrator

Date

ARBITRATION ORDER

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 76

FSCO A13-001839

BETWEEN:

DANIEL SABADASH

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

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

1. Mr. Sabadash is entitled to an Income Replacement Benefit during the first 104 weeks after the accident.

2. Mr. Sabadash is entitled to an Income Replacement Benefit for the period after the first 104 weeks after the accident.

3. Mr. Sabadash is entitled to payment for assistive devices as recommended by FunctionAbility Rehabilitative Services Inc. in the amount of $2,176.56.

4. Mr. Sabadash is entitled to payment for occupational therapy treatment by FunctionAbility Rehabilitative Services Inc. in the amount of $3,597.96.

5. Mr. Sabadash is entitled to payment for a neuropsychological assessment by Ricci Rossy Psychological Services in the amount of $1,707.00.

6. A special award of $30,000.00 is payable including interest in the usual manner.

7. Expenses shall be payable.

8. Mr. Sabadash is entitled to interest for the overdue payment of benefits at the prescribed rate.

9. With regard to the calculation of dollar amounts not specified above: In the event that the parties cannot come to an agreement on the quantum of the amounts owing pursuant to the directions in my decision, any party may deliver written submissions to me of no more than 5 pages each per issue. The claimant’s submissions to be delivered within 30 days of the date of this decision and the responding party’s submissions to be delivered within 20 days of the receipt of the claimant’s submissions. Reply material shall be provided within 10 days of receipt of the response. In that regard I remain seized of the Application.

March 7, 2016

Alan G. Smith Arbitrator

Date

Footnotes

1. 1Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “new Schedule”) came into force. The transition rules in the new Schedule provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “old Schedule”) shall be paid under the new Schedule, but in amounts determined under the old Schedule. As a result, both the old Schedule and the new Schedule are applicable to accidents that occurred on or after November 1, 1996 and before September 1, 2010 and both should be considered.
2. 2It should be noted that the text, where italicized, were taken verbatim from Dr. Navarro’s notes. The other text is that of counsel for State Farm.
3. 3FSCO A09-00213, March 1, 2012.
4. 4Mujku and State Farm Mutual Automobile Insurance Company, FSCO A10-002979, January 14, 2013, at page 4; and Monks v. ING Insurance Company of Canada, 2008 ONCA 269, [2008] O.J. No. 1371, at para. 91.
5. 5Mujku, Ibid.; Reichert and Chubb Insurance Company of Canada, FSCO A12-003518, page 5 (referred to in Ghabn and Dominion of Canada General Insurance Company, FSCO A12-002238, which was discussed during the present Arbitration Hearing); and M.T. and RBC General Insurance Company, FSCO A11-001877, February 28, 2014, at page 4.
6. 62007 SCC 7, [2007] 1 S.C.R. 333.
7. 7Supra, Footnote 3.
8. 8Ibid.
9. 9Supra, Footnote 3.
10. 10Supra, Footnote 5.
11. 11[2012] SCC 32.
12. 122015 ONCA 165.
13. 13Supra, Footnote 10.
14. 14Ibid.
15. 152009 CanLII 57147 (ON SC), 99 O.R. (3d) 632 (Ont. S.C.), referred to in Ghabn and Dominion, supra, footnote 4.
16. 16Supra, Footnote 10.
17. 17Supra, Footnote 16.
18. 18Supra, Footnote 10.
19. 19Supra, Footnote 3.
20. 20Black’s Law Dictionary Online Legal Dictionary, 2nd edition.
21. 21R.S.O. 1990, c. I.8, as amended.
22. 22FSCO Decision on Special Award, Erickson and The Guarantee Company of North America, A-000560, June 2, 1992, at p. 8.
23. 23Ibid., at p. 8.
24. 24Ibid., at p. 8.
25. 25FSCO A-003985, October 29, 1993, at p. 17.
26. 26Erickson and The Guarantee, A-000560, July 16, 1992.
27. 27FSCO, P12-00006, 2012.
28. 28Ibid.
29. 29Supra, Footnote 5.
30. 30Arbitration Transcript, Day 5, Page 41, Lines 13+ and Page 44, Lines 13-15.
31. 31Supra, Footnote 10.
32. 32Supra, Footnote 14.