Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2018 ONFSCDRS 28

FSCO A16-003457

BETWEEN:

CLIFTON PALMER

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

Before: Arbitrator Anne Morris

Heard: In person at ADR Chambers on October 17, 18 and November 30, 2017

Appearances:

Mr. Alex Nikolaev, legal counsel, represented the Applicant

Ms. Anju Sharma represented the Insurer

Issues:

The Applicant, Mr. Clifton Palmer (the “Applicant” or “Mr. Palmer”), was injured in a motor vehicle accident on March 21, 2015 and sought accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Palmer, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Arbitration are:

Is the Applicant entitled to receive a weekly income replacement benefit of $396.41 from March 28, 2015 to 104 weeks after the accident, less amounts paid by the Insurer?
Is the Applicant entitled to receive a medical benefit for services by PhysioMed as follows:

a) $210.91, the outstanding amount remaining, pursuant to a treatment and assessment plan dated June 10, 2015 in the amount of $1,310.91;

b) $1920.00 pursuant to an assessment and treatment plan dated July 7, 2015;

c) $200.00 for a disability certificate dated April 13, 2015?

Did the Applicant sustain injuries as a result of the accident which are minor injuries within the meaning of the Minor Injury Guideline and Schedule?
Is either party entitled to its expenses of the Hearing?
Is the Applicant entitled to interest for the overdue payment of benefits?

Result:

The Applicant is not entitled to receive a weekly income replacement benefit of $396.41 from March 28, 2015 to 104 weeks after the accident, less amounts paid by the Insurer.
The Applicant is not entitled to receive a medical benefit for services by PhysioMed as follows:

a) $210.91, the outstanding amount remaining, pursuant to a treatment and assessment plan dated June 10, 2015 in the amount of $1,310.91;

b) $1920.00 pursuant to an assessment and treatment plan dated July 7, 2015.

The Applicant is entitled to receive $200.00 for a disability certificate dated April 13, 2015 upon receipt of an invoice.
The Applicant sustained injuries as a result of the accident which are minor injuries within the meaning of the Minor Injury Guideline.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
The Applicant is not entitled to interest for the overdue payment of benefits.

EVIDENCE AND ANALYSIS:

Background

At the time of the accident, the Applicant was 63 years old. He was a shuttle bus driver for a car dealership when his vehicle was T-boned in a three-car collision on March 21, 2015. He stopped work as a result of the injuries he sustained in the accident and has not returned to work to date. The Insurer paid income replacement benefits (“IRBs”) at the rate of $396.41 per week until August 28, 2015, when payments were stopped following insurer examinations. The quantum of IRBs is not in dispute but the Applicant claims IRBs to the 104-week mark post-accident on the basis that he continued to suffer a substantial inability to perform the essential tasks of his employment as a result of the injuries suffered in the accident.

The Applicant underwent physical therapy for his injuries. The Insurer paid for treatment to the limit of $3,500.00 imposed by section 18 of the Schedule for injuries which fall within the Minor Injury Guideline (“MIG”). The Applicant submits that he suffers from chronic pain and that this condition falls outside of the MIG.

Medical Evidence

Reports of Dr. Dwyer and Dr. Syed

According to Dr. Tim Dwyer, who provided an orthopaedic assessment report dated September 12, 2017,² the Applicant currently complains of ongoing pain in the lower back. He describes this pain as an aching type of pain in the midline and right left paraspinal regions.³ The pain radiates down the back of the left calf. He complains of persistent pain in the neck which he describes as an aching type pain in the right paraspinal region. He complains of persistent left shoulder pain which he describes as an aching type of pain at the front of the shoulder. He described other symptoms including insomnia, depression, and difficulty concentrating as well as headaches once per week which he related to his neck pain.⁴

Dr. Dwyer diagnosed myofascial and ligamentous injury to the lumbar and cervical spine as well as soft tissue contusion to the left shoulder and cervicogenic headaches.⁵ In my view, these physical injuries fall within the definition of minor injury described in section 3 of the Schedule: “…sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury…”.

Dr. Dwyer, however, also diagnosed chronic pain syndrome. I accept that chronic pain is a condition which requires treatment outside of the MIG but pain cannot be measured and credibility is an important factor in determining whether an applicant suffers from chronic pain. It is up to the Applicant to show that he more likely than not suffers from chronic pain as a result of injuries which arose from the accident.

In his report, Dr. Dwyer indicated that focus was made on “Waddell’s signs”. He noted that Waddell “described these signs in the 1980s after studying a group of patients with signs thought to be non-organic, or representing signs thought to be nonorganic, or representing malingering or hysteria…The presence of these signs is thought to indicate psychological distress…and a magnified presentation of the severity of the problem…”⁶. Dr. Dwyer went on to explain that Waddell signs have also been shown to be associated with adverse psychological and emotional response to injury, and a poor prognosis for recovery. These are also felt to be features of a chronic pain syndrome.

It appears to me then from Dr. Dwyer’s report that positive Waddell signs could be a sign of symptom magnification or they could be legitimate features of chronic pain. As regards symptom magnification, however, I note the validity concerns expressed by Dr. Syed, a neuropsychologist, who provided a psychology report as part of an insurer multidisciplinary assessment report dated August 20, 2015.⁷ Dr. Syed conducted psychometric testing and concluded in part as follows:⁸

…Mr. Palmer presents with certain patterns or combinations of features that are unusual or atypical in clinical populations but relatively common among individuals feigning mental disorder. As such limited confidence can be ascribed to the reliability and validity of the data gathered in this evaluation. There is some evidence suggesting that Mr. Palmer is suffering from maladaptive beliefs about his level of disability resulting in psychological distress. The severity unfortunately cannot be determined due to invalidity of the test results.

The presence of positive Waddell signs combined with the validity concerns of Dr. Syed is problematic. In addition, there are discrepancies between the Applicant’s evidence and the clinical notes and records of PhysioMed.

PhysioMed

The Applicant testified that he felt back pain, mostly in the lower back, prior to the accident but he did not receive treatment for it and it did not prevent him from working. The clinical notes and records of PhysioMed⁹ indicate that the Applicant received treatment for his back beginning on March 18, 2015, three days before the accident.¹⁰ According to the records he continued to receive treatment on a regular basis after that time. The first mention of a motor vehicle accident is in a “New Complaint Evaluation” dated April 6, 2015.¹¹ A spinal assessment form showing an assessment date of March 16, 2015 and showing a referral by Dr. Snape, the Applicant’s family doctor, indicates with respect to incident history: “Pain in the lower back since last five years; on/off pain but has been [illegible] severe last few weeks, wanted to get some PT done”.¹²

The Applicant stated on cross-examination that he did not go to PhysioMed before the accident. His doctor recommended a chiropractor after the accident. A friend told him about PhysioMed and he did not go to the therapist recommended by Dr. Snape. He thought that PhysioMed had the dates wrong.

It may very well be that PhysioMed’s notes are inaccurate, but no one from PhysioMed was called to clarify the clinical notes and records even though the Hearing required more time and was adjourned for more than a month after the Applicant gave evidence. In reviewing Dr. Snape’s clinical notes and records,¹³ I do note that there is no reference to musculoskeletal pain in the year prior to the accident, but the discrepancies in the PhysioMed notes and the failure to clarify them remain problematic.

Hospital Record and Clinical Notes of Dr. Snape

The emergency triage record from the day of the accident indicates that the Applicant complained of pain in the “left leg hip area and thigh no back or neck pain.”¹⁴ Dr. Snape’s note of March 23, 2015¹⁵ with respect to the accident indicates that the left side of the Applicant’s body struck the inside of the car. He reported right sided, neck, chest and back pain. The next day, he complained of considerable pain in the right side of his body from the neck down to his leg. He complained of muscle pains in his shoulder, arm, and leg and his pectoralis major was tender. Dr. Snape provided him with a note to be off work for two weeks.¹⁶ The Applicant complained of left shoulder and left upper chest pain related to the accident on April 2, 2015.¹⁷ An ultrasound of the left shoulder on April 7, 2015 showed supraspinatus tendinosis and bicep tendinosis. There was no evidence of a rotator cuff tear.¹⁸ The Applicant complained of accident related muscular pain on May 4, 2015 in the neck, upper back and chest and arm.¹⁹ He had stiffness and reduced movement in the neck and upper back on May 12, 2015.²⁰ On July 23, 2015, Dr. Snape indicated that the Applicant had chronic left shoulder pain. On December 29, 2015, Dr. Snape indicated that the Applicant had whole body pain for some time with stiffness and pain in the arms, upper chest, back and legs.²¹ An x-ray of the cervical spine on December 31, 2015 showed stable degenerative changes.²² Comparison was made with an earlier x-ray of “15-10-13”. There are no x-rays in Dr. Snape’s records from 2015, and so I infer that this is a reference to an x-ray in 2013 which suggests cervical spine difficulties in 2013. Dr. Snape’s records before 2014 were not filed.

An x-ray of the lumbosacral spine on December 31, 2015 showed multi-level degenerative disc disease.²³ On the same date an X-ray of the pelvis showed mild arthritis in both hip joints, and mild arthritis of the S.I. joints.²⁴ On January 26, 2016, Dr. Snape discussed the x-rays with the Applicant and indicated that he had widespread arthritis. He was told that he would have to deal with his arthritis on a permanent basis.²⁵ On February 10, 2016, Dr. Snape recommended massage for the neck and back. On June 7, 2016, the Applicant’s problem related to tennis elbow. The doctor noted that, “he has been doing repetitive work”.²⁶ (The Applicant denied working.) On October 12, 2016, Dr. Snape indicated that the Applicant still had pain in his left shoulder and left side of his chest caused by the accident.²⁷

Conclusions from Medical Evidence

The Applicant reported leg pain at the hospital immediately after the accident. In the days following when he saw his family doctor, he reported primarily back and upper body pain, both on the right and left. He did report leg pain, but on the left on March 24, 2015. After that there is little mention of leg pain but rather of more widespread back and upper body pain. After x-rays were taken in December, 2015, the Applicant’s family doctor, who was not called to give evidence, appears to have concluded that the Applicant has widespread osteoarthritis and that this is the source of his pain. This is a reasonable conclusion, given that the Applicant was 63 years old at the time of the accident and that he had already, from the evidence, experienced neck and back pain prior to the accident.

Dr. Snape’s note of October 12, 2016 does seem to attribute the Applicant’s ongoing left shoulder pain and upper chest pain to the accident. The ultrasound of the shoulder in April 2015, however, showed tendinosis. It did not show a tear. It did not show an injury which falls outside of the MIG. There is no objective evidence with respect to an injury to the chest to suggest that this injury falls outside the MIG. The Applicant has been treated within the MIG for these injuries.

The presence of positive Waddell signs noted in Dr. Dwyer’s report, coupled with the presence of invalidity concerns in psychometric testing as noted by Dr. Syed in her report, tends, in my view, to undermine the credibility of the Applicant. In addition, there is the unresolved discrepancy between the Applicant’s evidence as to pre-accident treatment and the clinical notes and records of PhysioMed. Underlying osteoarthritis appears in any event to be the likely underlying, organic cause of most of the Applicant’s pain. I find that there is insufficient evidence that the Applicant suffers chronic pain as a result of injuries sustained in the motor vehicle accident. The onus is on the Applicant to show that his injuries arising from the accident fall outside the MIG. He has not discharged that onus.

The Insurer has provided treatment to the limits of the MIG. Given my findings that the Applicant’s injuries resulting from the accident are minor injuries within the meaning of the MIG, the Applicant is not entitled to further treatment and the assessment and treatment plans in dispute are not payable. The Insurer has agreed to pay the $200.00 for the disability certificate upon receipt of an invoice.

Income Replacement Benefits

The Insurer paid IRBs to August 28, 2015. By that time and from my review of Dr. Snape’s notes discussed above, the Applicant was seeing his family doctor for pain from the accident much less frequently. Dr. Snape did not reference pain from the accident after July 23, 2015 until December, 2015, when the x-rays, showing osteoarthritis as the likely source of this then 64-year-old man’s pain, were taken. In his clinical note of March 24, 2015²⁸ Dr. Snape indicated that he provided a note for the Applicant to be off work for two weeks. There are no further references to such notes after that time and Dr. Snape did not otherwise provide an opinion as to the Applicant’s ability to work.

Dr. Dwyer opined in his report of September 12, 2017, made more than 104 weeks after the accident, that the Applicant was unable to work. The assessment was based on the Applicant’s self-report. Dr. Dwyer’s diagnoses included chronic pain syndrome, a diagnosis which I don’t accept for the reasons already given. I am not persuaded by Dr. Dwyer’s opinion that the Applicant was unable to work during the time period in question.

The Insurer stopped IRBs based on the multi-disciplinary insurer examination conducted by Dr. Syed whose report is discussed above, and by Dr. Weisleder, an orthopaedic surgeon.²⁹ I accept Dr. Weisleder’s diagnosis of cervical strain, left shoulder strain, thoracic strain and lumbar strain. I also accept that these are minor injuries. Dr. Weisleder concluded that the Applicant did not suffer a substantial inability to perform the tasks of his employment. I see no reason on the evidence to disagree with that finding. The Applicant was a shuttle bus driver for a car dealership. He received IRBs for five months after the accident. By that time, it is reasonable to expect, on the evidence, that he could resume his employment. From the evidence, his body was not constantly in a driving position. There would likely have been “down” time and periods of waiting for passengers. His submission that he was unable to return to work would have been more credible had he tried to do so. He did not. I find that he has not shown on a balance of probabilities that he suffered a substantial inability to perform the tasks of his employment during the time period in question.

Interest

Since no amounts are found to be owing by the Insurer, the Applicant is not entitled to interest.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

February 1, 2018

Anne Morris Arbitrator

Date