17-004229 v The Guarantee Company of North America

Date: 2018-08-31 Tribunal File Number: 17-004229/AABS Case Name: 17-004229 v The Guarantee Company of North America

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant

Applicant

and

The Guarantee Company of North America

Respondent

DECISION

ADJUDICATOR: Deborah Neilson

APPEARANCES:

For the Applicant: Georgiana Masgras, Counsel Danica E. Maslov, Counsel

For the Respondent: Kasia Kosacka, Counsel

Arabic Translator: Iman Hasna

Court Reporter: Sarah Wyatt

HEARD in person on March 28 and 29, 2018 in Kitchener

I. OVERVIEW

1The applicant was a passenger who was in involved in a single vehicle roll-over automobile accident on May 16, 2015. He sustained soft tissue injuries as a result of the accident and continues to complain of disabling headaches, low back pain, neck pain, right leg and abdominal pain. He applied for and received statutory accident benefits from the respondent, The Guarantee Company of North America.

2The respondent paid the applicant income replacement benefits (“IRBs”) from May 23, 2015 to June 23, 2017. It terminated IRBs because it claimed the applicant does not meet the more restrictive test for entitlement to IRBs that changes at 104 weeks of disability. The respondent relied on the opinions of a team of medical experts who conducted insurer’s examinations of the applicant (“IEs”) and who determined the applicant could return to some form of suitable employment.

3The applicant disputes the respondent’s denial of IRBs and submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”). He claims he is entitled IRBs in the amount of $400.00 per week from June 23, 2017 to date and ongoing, and to interest on any overdue payment of benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

4The parties participated in a case conference, but were unable to resolve the issues in dispute. The Tribunal scheduled a hearing to determine the applicant’s eligibility for IRBs. In support of his claim, [the applicant] testified on his own behalf and supplied various medical records. He submits he has a complete inability to engage in any suitable employment because of chronic pain as a result of the accident. The respondent relied on the testimony of a physiatrist, Dr. John Heitzner, and a psychologist, Dr. David Prendergast, both of whom assessed the applicant for the multidisciplinary IE. The respondent submits that, given the evidence of its IE assessors, the applicant’s evidence that his pain levels are disabling is not reliable.

5While I have no doubt that the applicant has pain complaints, I find that his evidence of the level of pain that he experiences is not reliable. I find that the applicant has not proven that he is entitled to IRBs from June 23, 2017 to date for the reasons that follow.

II. ISSUES IN DISPUTE

6The issues I must determine are as follows:

(a) Is the applicant entitled to a weekly IRB from the period of June 23, 2017 to date and ongoing?¹

(b) Is the applicant entitled to an award under s. 10 of Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

(c) Is the applicant entitled to interest for the overdue payment of benefits?

7At the outset of the hearing, the respondent raised some procedural issues. The first issue was that the respondent objected to the affidavit of Dr. Ihab Eskander, the applicant’s family physician, being made an exhibit. The respondent submitted that it would not have an opportunity to cross–examine Dr. Eskander on his affidavit because the applicant was not producing him, and that this inability to cross–examine amounted to a violation of procedural fairness. I allowed the affidavit to be filed as an exhibit for the following reasons. The Tribunal’s duty of procedural fairness to parties is to ensure they understand the case they have to meet and allow them to respond accordingly. In this case, the respondent has not demonstrated it will suffer any real prejudice in that regard. The respondent was aware from the case conference Adjudicator’s order that the applicant intended to rely on the clinical notes and records of Dr. Eskander for the hearing. On February 21, 2018, the applicant’s counsel wrote to the respondent’s counsel advising that the applicant was intending to rely on the affidavit of Dr. Eskander and was not calling him as a witness for the hearing. The respondent, therefore, knew the applicant was going to file an affidavit and not call Dr. Eskander as a witness more than a month before the hearing. At no time prior to the hearing did the respondent seek an order or ask the applicant to make Dr. Eskander available for cross-examination, despite having ample time to do so. The respondent did not raise any objection until the hearing commenced.

8The respondent sought to have Dr. Eskander’s opinion in paragraph 20 of his affidavit struck on the basis he was not an expert but a treating physician and he failed to comply with Rule 53.03 of the Rules of Civil Procedure. The respondent relied on the Court of Appeal decision of Westerhof v. Gee Estate² to submit that, as a treating practitioner, Dr. Eskander is precluded from providing expert evidence. I denied the respondent’s request for the following reasons. Westerhof deals with the Rules of Civil Procedure, which are made under the Courts of Justice Act. The Rules of Civil Procedure apply to court actions and do not apply to the Tribunal. The procedure for a party who wants to rely on expert evidence at a hearing before the Tribunal is set out in Rule 10 to Rule 10.4 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) [the “LAT Rules”]. LAT Rule 10.2 is similar to Rule 53.03 of the Rules of Civil Procedure because it requires the expert to provide a report by a specific time setting out his or her opinion, the basis for it and to sign an acknowledgment that his or her duty is to the trier of fact.

9I do not find that the reasoning in Westerhoff assists me.³ The Rules of Civil Procedure do not define what an expert is, unlike LAT Rule 10.1. Because Dr. Eskander is a family physician, I find he is qualified to provide professional and scientific, or technical information and opinion based on the special knowledge of a physician through his education, training and experience in accordance with LAT Rule 10.1. Even if the Rules of Civil Procedure did apply, I do not find that Westerhof assists the applicant because according to Westerhof, Dr. Eskander’s evidence would be admissible. According to Westerhof, as a treating physician, Dr. E is a “participant expert” (also known as a fact witness) who can provide evidence about his own observations without having to sign an acknowledgment of his duty to the court, or in this case, that his duty is the Tribunal.⁴

10The respondent was served with the information required under LAT Rule 10.2, including Dr. Eskander’s contact information and his signed acknowledgment that his duty is to the Tribunal. I find Dr. Eskander’s clinical notes and records and his affidavit, for the most part, fulfill the requirements in LAT Rules 10.2(d) and (e) to provide a report setting out his conclusions, the basis for his conclusions and findings. The applicant submitted that Dr. Eskander’s affidavit was essentially a summary of his clinical notes and amounted to a summary of his opinion and report by Dr. Eskander in compliance with LAT Rule 10. I was provided with no evidence that the respondent intended to challenge Dr. Eskander’s qualifications or opinion as required by LAT Rule 10.4.

11The respondent called the evidence of Dr. Heitzner before the cross-examination of the applicant was conducted in order to accommodate Dr. Heitzner’s schedule. The respondent sought to have the applicant excluded from the hearing during Dr. Heitzner’s testimony on the basis the applicant may tailor his evidence after hearing Dr. Heitzner’s testimony. The applicant has a right to hear the evidence the respondent is relying on because it is the applicant’s case. The respondent could not provide me with any evidence or reason why I should be concerned the applicant may tailor his evidence, especially since the applicant has had possession of Dr. Heitzner’s reports for some time. The respondent had the opportunity to call Dr. Heitzner after the respondent completed the applicant’s cross-examination, but the respondent declined and proceeded with introducing the testimony of Dr. Heitzner before the completion of the applicant’s case. For these reasons, I declined to exclude the applicant from the hearing during Dr. Heitzner’s testimony.

12The applicant sought production of Dr. Prendergast’s raw test data during his cross-examination at the hearing. The raw test data was not sought at the case conference. Dr. Prendergast testified that the raw test data may be misconstrued by a person who does not have the training in interpreting the data. I did not order production, because, on consent of both parties, I allowed both counsel to review Dr. Prendergast’s clinical notes and raw test data and ask questions on them.

III. RESULT

13The applicant is not entitled to IRBs after June 23, 2017.

14No interest is owed on any benefits.

15The applicant is not entitled to an award under s. 10 of Ont. Reg. 664/10.

IV. ANALYSIS

(a) Entitlement to IRBs

16Based on the fact that the respondent paid the applicant IRBs for over two years, there is no issue that the applicant sustained a substantial inability from his accident injuries to engage in the essential tasks of his pre-accident occupation as a Computer Numerical Control or CNC setter machine operator on an automobile parts production line. The test for entitlement to IRBs changes after the first 104 weeks of disability. In order for me to find that the applicant is entitled to IRBs from June 23, 2017 to date or after the 104 week period, the applicant must prove on a balance of probabilities that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience⁵. Suitable employment also means employment in a competitive, real-world setting, taking into account an employer’s demands for reasonable hours and productivity. The work should also be comparable in terms of status and wages.⁶

17The Financial Services Commission of Ontario (“FSCO”) decision of L.F. v State Farm Mutual Automobile Insurance Company⁷ held that that, while the legal onus always remains on the insured, the sufficiency of the proof depends on what is reasonable in the circumstances. This involves consideration of all the evidence including the nature of the applicant's condition and extent of his disability, his efforts to position himself to return to the workforce, the vocational assistance made available by the respondent and the options for alternative work that have been put forward. I am not bound by this decision, but I agree with the reasoning in that decision because the applicant has the onus of proof, and that onus of proof requires the applicant to prove a negative. It is difficult to prove a negative, which for insured person’s like the applicant, requires proof that the applicant is unable to do any suitable job.

18In support of his claim, the applicant submits that he has been approved for Canada Pension Plan (“CPP”) disability benefits. The respondent relies on the Tribunal’s decision of 16-002000 v. Jevco Insurance Company for the proposition that a successful CPP application is not determinative of an applicant’s entitlement to post-104 week IRBs.⁸ I agree with the respondent that a successful CPP disability application is not determinative of entitlement to IRBs because the considerations for entitlement to CPP may include health issues that are not related to any injuries sustained in the automobile accident. The Adjudicator in 16-002000 v. Jevco gave some weight to the Social Security Tribunal of Canada’s (“SSTC”) finding of entitlement to CPP disability benefits in that case because the test for entitlement to CPP benefits is more stringent than the test for post-104 week IRBs. However, I do not know whether the SSTC had the same medical evidence as the Tribunal Adjudicator in 16-002000 v. Jevco. I would be abdicating my jurisdiction to determine the applicant’s entitlement to IRBs if I simply held that that a CPP entitlement was determinative of the applicant’s entitlement to IRBs. In this case, the only medical document in the CPP file was a report for the applicant’s family physician. I do not know whether the SSTC had the benefit of reviewing the IE reports, Dr. Eskander’s clinical notes and records including the diagnostic test results or the report of the applicant’s specialists.

19The applicant has not identified any suitable employment. The respondent relies on the June 23, 2017 report of its IE assessor, Marcel Jean, a vocational specialist, who determined that the applicant could work as an electronic assembler; an assembler, inspector or packager of small products; a garment inspector or an inspector of plastic products. Accordingly, I must look at the following factors to determine whether the applicant can work at the employment identified by the respondent:

(i) is the applicant reasonably suited by experience, training and education and aptitude to the employment identified by the respondent;

(ii) is the employment identified by the respondent comparable in terms of wage and status?

(iii) has the applicant attempted to work and, if not, why not; and

(iv) what are the applicant’s disabilities and do the disabilities prevent the applicant from working at suitable employment?

(v) Is it detrimental to the applicant’s recovery or treatment to obtain employment for which he or she is reasonably suited by education, training or experience?

i) Experience, Training And Education

20The applicant has been employed as a CNC setter on a production line with the same company since 2012. He was required to operate a machine and, according to a Workplace Safety and Prevention Services job demand report on his position, the strength demand of the applicant’s employment was sedentary. The applicant testified that from 2006 to 2012, he worked for various manufacturers on the production line. According to the applicant’s resume, he has experience working on a production line for manufacturers as a CNC setter, a CNC lathe operator, an inspector of products on a production line, and a packer on a production line. He has a gap in his work experience from 2007 to 2010. The applicant testified that he taught mathematics to high school students for three years before he immigrated to Canada in 2006. He has a degree in mathematics from Iraq and was working on obtaining his Master’s degree in mathematics when his family had to leave Iraq because of the war. He did not upgrade his mathematics degree in Canada because he was required to be employed in order to sponsor the immigration of his brothers from Iraq to Canada.

21Mr. Jean provided the applicant with a number of questionnaires to determine his aptitudes and interests. Based on the test results, the applicant’s past employment, and his employment at the time of the accident, Mr. Jean identified suitable employment as an electronic assembler; an assembler, inspector or packager of small products; a garment inspector or an inspector of plastic products. Mr. Jean did not provide a profile summary for each job setting out the aptitudes and physical requirements for each occupation, other than noting they are all sedentary positions. However, his opinion that the types of employment were most suitable based on the applicant’s aptitudes and past experience and training was unchallenged, and I have no reason to doubt that the jobs Mr. Jean listed require aptitudes similar to the applicant’s. Based on the applicant’s testimony, his employment file, his resume and the report of Mr. Jean, I find that the employment identified by Mr. Jean is reasonably suited by the applicant’s education, training and experience.

ii) Comparable Wage and Status

22The median wages for the employment identified by Mr. Jean are much lower than what the applicant was earning at the time of the accident. The applicant’s 2014 tax return disclosed that he earned just over $59,000 in employment income, and he testified he was earning about $23.00 per hour. The respondent relies on the market survey of Mr. Jean, which determined that there were job postings for assemblers in the median range of $13.50 to $16.00 per hour. The median wages in the market survey translate to annual earnings of about 30 percent less than what the applicant was earning at the time of the accident. However, the maximum wages identified in the market survey are comparable and even exceed, in some cases, the applicant’s pre-accident earnings. Mr. Jean reported that the high wage in most cases corresponds to the 90th percentile, which means that 90 percent of the workers earn the maximum wage or less. The market survey disclosed there were jobs available, but not for more than about $15.00 per hour. Those wages are essentially entry level wages. Therefore, the potential wages the applicant could earn are comparable to his pre-accident occupation, but the entry-level wages are not. Given the applicant’s experience and training, I find he would likely qualify for a higher wage than the entry level.

23If I am incorrect in finding that the higher wages in the jobs identified by the respondent are comparable to the applicant’s pre-accident wages, that does not mean the applicant has satisfied his onus of proof. He has not provided evidence of his attempts to identify any other employment that may be suitable. Therefore, the next question is whether the applicant made attempts to obtain other employment.

iii) Attempts to Work

24The respondent relies on the FSCO decision of Lastowski and State Farm Mutual Automobile Insurance Company⁹ and submits that an applicant will not be entitled to post-104 week IRBs if he at no time makes an effort to secure suitable employment. The applicant in this case testified that he did not attempt to find any other work because he intended to return to his work with the manufacturer he was employed with on the day of the accident. After he provided a schedule to his employer for a graduated return to work in 2017, he was let go.¹⁰ On June 31, 2017, the applicant’s employer terminated his position because the employer did not have any positions to accommodate the applicant’s permanent physical precautions.

25I do not agree with the respondent’s characterization of the law. The arbitration decision in Lastowski was overturned on appeal and a new arbitration ordered.¹¹ I am not bound by the FSCO decisions, but I agree with the reasoning of the Director’s Delegate in the appeal decision of Lastowski for the following reasons. Section 58 of the Schedule creates an onus on the applicant to make reasonable efforts to obtain employment for which he is reasonably suited by experience, training or education. However, s. 58 of the Schedule only applies to an insured person if returning to employment would not be detrimental to his treatment or recovery. The reasoning in the Lastowski appeal decision that the level of disability must be considered if a person does not make efforts to find work is another way of looking at whether the work would be detrimental to the person’s treatment or rehabilitation. I find the same consideration is apparent in the FSCO appeal decision in L.F. and State Farm where it was held that that sincere, but unsuccessful, rehabilitation efforts go a long way towards proving disability. Conversely, failure to take such steps is likely to work against a claimant unless there is some explanation such as the job is unsuitable because of the applicant’s level of disability, education or training.¹² For these reasons, I find that the effort an applicant makes to secure suitable employment is a factor to consider and is not determinative without considering whether the medical evidence shows an applicant is too disabled to even attempt a return to work or that the attempt would be detrimental to the applicant’s recovery or treatment.

26In this case, I am not satisfied that the applicant’s request to his employer to return to his pre-accident job assists the applicant with his onus to show he is unable to engage in any occupation. There is no issue the applicant was unable to engage in the essential tasks of his pre-accident employment. This is evidenced by the fact the respondent paid the applicant IRBs for over two years. To satisfy his onus, the factor that I would consider is not the applicant’s request to return to his pre-accident job, but his efforts in obtaining and his attempts to work at some other occupation that is suitable for him.

27The applicant testified that he tried to obtain a volunteer position [a community centre] that did not involve any physical work, and called a working centre in either 2016 or 2017, but received no response. An application and a phone call without any follow-up to the organizations does not amount to any real attempt or effort to work. I find that something more than the minimal effort described by the applicant is required as evidence of efforts to obtain work to be a factor in favour of the applicant.

28The applicant submits that he did not make any effort to obtain suitable employment because his doctors said he could not work. However, the applicant reported to Dr. Prendergast that Dr. Eskander was supportive of him returning to part-time work, but that he was not ready to work full-time. The applicant also said he needed to gradually return to work because of his pain and cognitive problems. Although Dr. Eskander reported to the applicant’s employer that the applicant was unable to perform his job duties because of his physical limitations, there was no evidence from him or any of the applicant’s other physicians that any effort to return to suitable sedentary employment would be detrimental to the applicant’s treatment or recovery. Therefore, I am not satisfied that the applicant has made a sincere effort to obtain suitable employment.

29The applicant also testified that he did not attempt to obtain suitable employment because his condition deteriorated in 2017 compared to 2016. Therefore, I must determine whether the applicant’s has disabilities that prevent him from attempting to obtain suitable employment.

(iv) Applicant’s Disabilities

30The applicant testified that, because of the accident, he has headaches that create an inability to concentrate and focus, a limp, a pain in his right side and an inability to stand or sit for long. He developed neck, right shoulder and low back pain three days after the accident. He had bruising around his right eye that resolved. A few months after the accident, he started complaining of problems with his right eye consisting of blinking and tearing.¹³ He testified that he sustained a concussion in the accident that causes headaches that prevent him from properly opening his eyes and that cause tears. Presently, he rates his abdominal pain at 9/10, neck pain at 8/10, back pain at 7/10 to 8/10 and his shoulder pain at 6/10 to 7/10 on a pain scale where 0 is no pain and 10 is the worst pain imaginable. He submitted that his pain complaints are so severe that they are disabling and prevent him from working at any suitable occupation.

31The medical records disclose that the applicant sustained soft tissue injuries to his right knee consisting of mild bursitis, bruising to his right femur¹⁴ and a laceration to his right ring finger requiring stiches.¹⁵ The ambulance call report states the applicant was alert, oriented and had no head or neck complaints. He complained of chest pain and upper right leg pain. He was diagnosed with post-traumatic headaches,¹⁶ post-traumatic migraine headaches, cervicogenic headaches, a moderate myofascial injury of the cervical and lumbar spines and soft tissue injuries to the right chest and right knee.¹⁷ There initially were some problems with vision loss in the right eye, but the applicant’s vision improved. Dr. Chryssa McAlister, eye surgeon, was going to treat the applicant for a mild blephitis¹⁸ in both eyes in October 2015 to see if that was contributing to his complaints. The applicant did not return for his follow-up appointment with her. Dr. McAlister did not comment on how blephitis might affect the right eye and not the left.¹⁹ She was going to see the applicant in a follow-up in two months and refer him to another doctor if there was no improvement. The applicant did not return to see Dr. McAlister.

32Dr. Dwight Stewart, neurologist, initially saw the applicant at the referral of Dr. Eskander in February 2016. At that time the applicant advised his vision had improved. Dr. Stewart referred the applicant to Dr. Peter Waind, ophthalmologist, who saw the applicant initially in July 2016²⁰ and who noted that in April 2017, the applicant’s visual fields had improved since 2016, but there were still some defects apparent in the right eye that were not explainable. He did not state what those defects were or whether they had any relationship to the accident. Dr. Stewart reported on July 26, 2017 that the applicant was complaining of tears and painful eyes. He wrote out instructions for eliminating Topiramate as one of the applicant’s prescriptions because he was concerned that this may be contributing to his ocular complaints. However, according to the applicant’s prescription receipts,²¹ he was taking Topiramate in December 2017 and January 2018. Therefore, I have drawn an inference from those receipts that the Topiramate was determined not to be the source of the applicant’s complaints. Given the applicant’s treatment for blephitis, his subsequent improvement in his vision, and his failure to return to see Dr. McAlister, I am unable to make a determination that it is more likely than not that the right eye condition (difficulty opening his eyes and tears) was caused by the accident.

33Dr. Stewart referred the applicant to Dr. Kulbir Billings, an anesthetist, for his headaches. The applicant was diagnosed with chronic pain by Dr. Billings, a diagnosis that the respondent’s physiatrist, Dr. Heitzner, agreed with. Pain is subjective and cannot be measured objectively. Therefore, for me to accept that the applicant’s pain is functionally disabling, I have to find that his testimony that he is experiencing pain at the levels he claims he is and that his pain causes him restrictions in his standing, sitting and walking tolerance, fatigue and cognitive problems is reliable. I find that the applicant’s testimony about his pain levels and its effect on his function is not reliable for the following reasons.

34The respondent relied on the May 12, 2017 report of Peter Ramos, the kinesiologist who conducted the function abilities portion of the IE assessment of the applicant. Mr. Ramos concluded that the applicant demonstrated an inconsistent or unreliable effort on testing. Further, the applicant displayed a decreased range of motion in his right shoulder on formal testing, but displayed much greater range of motion of the right shoulder during an overhead reaching test. His right knee range of motion was normal. Based on the test results, without considering the validity of those results, he demonstrated the physical ability to perform sedentary level work. Mr. Ramos’ evidence was unchallenged and I was provided with no reason to doubt his findings and opinion. Accordingly, I find that the applicant is able to, at a minimum, perform sedentary level work and that his reports of perceived disability are not consistent with his actual abilities.

35Dr. Prendergast, the applicant’s IE psychologist, reported on May 12, 2017, that the applicant displayed a high degree of physical and pain preoccupation. He reported there was no evidence from the applicant’s general demeanour of any significant emotional difficulties or cognitive limitations. Dr. Prendergast’s opinion was that the applicant was deliberately choosing the wrong items on testing in order to exaggerate his cognitive problems. Similarly, he also over-reported to an extreme degree, physical problems on another test. Dr. Prendergast stated that a score of his level is typically associated with malingering-like embellishment. Similarly, his scores on other tests indicated a significant exaggeration of pain. Overall his psychological tests results were not valid and Dr. Prendergast opined that the applicant engaged in significant exaggeration and over-reporting. Because of the applicant’s invalid test results, Dr. Prendergast was unable to find objective evidence of emotional or psychological condition. Dr. Prendergast testified that he never makes a diagnosis of malingering, but only speaks in terms of probabilities. In this case, the applicant was more likely than not malingering.

36Dr. Prendergast was qualified as an expert in psychology. The applicant urged me to give little weight to Dr. Prendergast’s testimony and opinion because he did not explain why he chose to administer the particular tests that he did. I disagree with the applicant because the purpose for which each test was designed are set out in Dr. Prendergast’s report. The applicant challenged Dr. Prendergast’s use of two tests that rely on pictures rather than language, but Dr. Prendergast testified that he would have asked the applicant and noted it he had difficulty either seeing or focussing on the pictures. I accept Dr. Prendergast’s evidence as the records support that the applicant’s vision had improved substantially by 2017 and the applicant presented no evidence to indicate other types of tests would have been more appropriate.

37The applicant also pointed out two discrepancies in his interview answers reported by Dr. Prendergast. Dr. Prendergast testified that he took no issue with those inconstancies. First, the applicant reported his left shoulder was worse than his right. Either the applicant or his translator mistakenly advised Dr. Prendergast that he had been working for his employer for five years at the time of the accident. Dr. Prendergast reported the documents disclosed it was three years. I do not find that Dr. Prendergast’s report of the applicant’s or his translator’s discrepancy diminishes Dr. Prendergast’s opinion or findings. Dr. Prendergast reported that the interpreter was used minimally during the assessment and that the applicant appeared to generally understand all inquiries and, when necessary, worked well with the interpreter. There was no evidence before Dr. Prendergast that the applicant did not understand the instructions. Further, Dr. Prendergast testified that language and cultural barriers would have no effect on two of the tests because they use pictures.

38For these reasons, I give Dr. Prendergast’s opinion about the applicant’s over-exaggeration a great deal of weight. I find support for my conclusions in Mr. Ramos’ validity findings and in similar findings apparently made in 2016 by two neuropsychologists, Dr. Kurzman and Dr. Wiseman.²² Further, as noted above, the applicant did not offer any evidence to challenge or present an alternative explanation for Dr. Prendergast’s findings and opinion.

39The respondent also relied on the testimony of Dr. J. Heitzner, who was qualified as an expert in physiatry, and his June 21, 2017 multidisciplinary report prepared together with Mr. Ramos, Mr. Jean and Dr. Prendergast. Dr. Heitzner reported that the applicant displayed a high perceived level of disability pain behaviour, self-restricted range of motion and inconsistency on physical examination. He diagnosed the applicant with a cervical strain, thoracolumbar strain, right knee contusion, pain to his left knee secondary to overuse or compensation, right upper quadrant abdominal pain and migraine-like headaches, the management of which ought to be addressed by a neurologist.

40The applicant urged me to give little weight to Dr. Heitzner’s evidence and testimony for two reasons. First, Dr. Heitzner agreed the applicant has chronic pain, but did not comment in his report on the effect chronic pain has on the applicant’s ability to work. Second, Dr. Heitzner reported that the applicant told him via an interpreter that he was taking the same medications before the accident that he was at the time of the IE assessment. Dr. Heitzner did not have a prescription summary or pre-accident clinical notes and records to support that information and he would have normally requested those documents if the applicant reported taking those medications.

41I do not agree that Dr. Heitzner’s opinion should be given little weight for the following reasons. Dr. Heitzner readily agreed the applicant had chronic pain and admitted that his report did not address whether the applicant’s chronic pain prevented him from engaging in any occupation. Dr. Heitzner did so without argument or guile. He described chronic pain as a condition of pain that lasts more than three months or up to six months that is constant, unremitting and influences one’s ability to carry on a normal life and that may or may not be substantiated by diagnostic tests. Dr. Heitzner treats patients in his practice who have been diagnosed with chronic pain who are able to work and patients who are not able to work. He testified that it was his opinion that the applicant’s level of pain would not affect his ability to work at the light or sedentary level, which is consistent with his report and the report of Mr. Ramos. He could not comment on the applicant’s motivation for exaggerating his symptoms. Dr. Heitzner admitted that he was not qualified to comment on the applicant’s headaches and whether they prevented the applicant from working.

42With respect to the pre-accident medications, Dr. Heitzner testified that, having been advised by the translator of the pre-accident medications, he would have wanted to see the applicant’s pre-accident medical records and freely admitted that it should have been a red flag to him. He also testified that because the applicant’s pre-accident medical history would only be relevant for determining the applicant’s outcome, any error in the information that the applicant was on medications pre-accident did not change his opinion.

43The applicant asks that I give more weight to the clinical notes, records and December 17, 2017 affidavit of Dr. Eskander than the evidence of the IE assessors as support that the applicant has disabilities that prevent him from obtaining suitable employment. Dr. Eskander’s affidavit evidence was that the applicant could not bend or flex his right knee or walk properly because of his right knee and suffered from depression as a result of his accident as of June 5, 2017. He stated that the applicant’s complaints as of December 19, 2017 consisted of severe headaches, pain in his right knee and pain in his neck and that the applicant still walked with a limp. There was no mention of vision problems in relation to the accident as of June 2017 or any time after.

44I prefer the opinion evidence of the respondent’s IE assessors over the opinion of Dr. Eskander for the following reasons. Dr. Eskander reviewed the reports of the respondent’s IE assessors and disagreed with them completely, but he did not provide any explanation or reasons for his disagreement. His opinion was that the applicant suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience, but he did not state why. He made no comment on the applicant’s sitting, standing or walking tolerances, unlike the IE assessors, or what was required for the sedentary positions identified by the respondent’s IE assessors. I do not know whether he reviewed all of the reports that the IE assessors did. He made no comment about the applicant’s exaggeration or the results of the validity testing conducted by Dr. Prendergast or Mr. Ramos. I have no evidence that Dr. Eskander has training comparable or even similar to Dr. Prendergast’s in administering and interpreting the validity tests provided to the applicant. Dr. Eskander did not provide any opinion about the degree of pain the applicant was suffering or whether his pain complaints interfered with his functional ability. Nor did he comment on whether the work identified as suitable by the IE assessors was detrimental to the applicant’s rehabilitation or treatment.

45The applicant was referred by Dr. Eskander to a rheumatologist, Dr. R. Fawaawi, on June 18, 2016. Dr. Fawaawi diagnosed the applicant with osteoarthritis of his knees and commented that the applicant’s degree of disability was disproportionate to the physiological and radiological findings. There was no evidence that the osteoarthritis was caused by the accident. However, Dr. Eskander did not comment on this report when providing his opinion that the applicant’s knee complaints were caused by the accident. Dr. Heitzner’s evidence, on the other hand, was that the applicant’s bursitis of the right knee was caused by the accident, but there was no instability of the applicant’s right knee when he saw him. Dr. Heitzner testified that the bone contusion to the right femur was caused by the accident, but the contusion would have healed by two years post-accident. The meniscus condition of the right knee was age related, but may have been exacerbated by the accident. However, Dr. Heitzner was still of the opinion the applicant could work at a light level or sedentary position. His evidence is supported by the applicant’s reports recorded in the medical records that his knee was improving.²³ I prefer Dr. Heitzner’s opinion about the applicant’s ability to work over Dr. Eskander’s because Dr. Heitzner provided an explanation for his opinion, he recorded a more thorough examination of the applicant, he specializes in physiatry and he addressed the applicant’s exaggeration, whereas Dr. Eskander completely ignored it.

46The applicant relies on the May 26 2017 report of Dr. Lance Majl, neurologist.²⁴ I do not find that Dr. Majl’s report assists the applicant for the following reasons. The applicant’s pain complaints on the scale of 1 to 10 were overall higher at that time than they were at the hearing. He reported only mild difficulty with his memory. Dr. Majl opined that the applicant had not reached maximal medical improvement and that his headaches substantially limited his ability to engage in any employment, which is not as strict a test as the test for post-104 week IRBs. Dr. Majl did not comment on whether the applicant had a complete inability to engage in suitable employment. In fact, he recommended a vocational assessment to provide guidance as to the most suitable occupation in light of the applicant’s impairments. I draw an inference from these comments (or lack thereof) that Dr. Majl did not think the applicant met the test for post-104 week IRBs. Dr. Majl did not review the multidisciplinary IE report of Mr. Jean, Mr. Ramos, Dr. Heitzner and Dr. Prendergast. However, he was aware that a neuropsychological IE assessment had been conducted by Dr. Wiseman in 2016 who opined that she could not rule out that the applicant was malingering. Dr. Majl reported that the applicant put forth good effort on the assessment that he tested normal on a brief mental status assessment with respect to cognition, perception, thought, insight, and judgement. These comments do not support the applicant’s claim that he is unable to focus or concentrate because of his headaches.

47The respondent relies on a paper review IE report of Dr. Yael Friedman, neurologist, dated January 8, 2018. Dr. Freidman assessed the applicant in 2016. His opinion in 2016 was that the applicant did not have any neurological impairment, but he had post-traumatic headaches that had not achieved maximal medical recovery at that time from a neurological perspective. Dr. Freidman, regardless, opined that the applicant did not have any neurological accident-based impairments or functional limitations or restrictions from a neurological perspective. I accept Dr. Freidman’s opinion about the effect of the applicant’s injuries on his ability to work because Dr. Freidman reviewed the all of the reports, in particular the IE report of Mr. Jean, Mr. Ramos and Dr. Prendergast. I do not find his report was opinion is challenged by Dr. Majl’s comment about the applicant being substantially limited his ability to engage in any employment because Dr. Majl did not review those reports and his comment does not address the stricter test for post-104 week IRBs.

48According to his report, Dr. Majl was aware that the applicant had been referred to Dr. Billing by Dr. Stewart, but it does not appear that he was aware that Dr. Stewart had recommended the referral in July 2016 in order for the applicant to try nerve-block injections for his headaches. By July 2017, Dr. Stewart strongly recommended Botox injections for his headaches.²⁵ The applicant testified that he did not try either the Botox because Dr. Stewart could not guarantee the Botox would work, it would probably only give temporary relief, and he would have to undergo the treatment every three months. According to his testimony, he thought the risks associated with the Botox outweighed the benefits. He did not try the nerve blocks because he thought the risks were worse than Botox. He testified that he discussed his decision with Dr. Eskander before he told both Dr. Stewart and Dr. Billings he would not undergo the treatment. However, I found no reference in Dr. Eskander’s notes about such a discussion. In fact, I find from Dr. Eskander’s comments in his October 10, 2017 note and his affidavit that he believed the applicant’s headaches were going to be treated by Botox and nerve injections.

49The applicant initially testified that he did not undergo the recommended treatment because he thought it would make his headaches worse. He testified that he did not get that information from the information and consent form on Botox contained in Dr. Stewart’s records. That form states that the risk of side effects²⁶ or allergic reaction are reported rarely and the side effects are generally temporary. I was provided with no evidence that the applicant has any other reason for not undergoing the treatment recommended to him other than he was scared the treatment would make his headaches worse. I find, based on the applicant’s reasons for not undergoing the recommended treatment, that his headaches are tolerable and do not require even temporary relief. For this reason, and because I have found that the applicant’s evidence about his levels of pain is unreliable, I find that the applicant has not established that he has a disability or impairment that prevents him from obtaining employment at any of the jobs identified by the respondent as suitable.

50I do not doubt that the applicant has some pain as result of the accident. I find, however, that because of the applicant’s discrepancies in the applicant’s performance on testing by Mr. Ramos and Dr. Prendergast, the level of pain the applicant claims he is experiencing is unreliable. For this reason, the applicant has not proven that his pain complaints of headaches, neck pain, back pain or knee pain result in a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

(b) Award under Ont. Reg. 664

51The applicant is seeking an award under s. 10 of Ont. Reg. 664 on the basis the respondent unreasonably withheld benefits. The particulars of the claim on the application state that the applicant was considered non-compliant and was not paid IRBs from January 12, 2017 to February 13, 2017 and that, upon compliance, the applicant was never paid the IRB. The application claimed IRBs from January 19 to February 3, 2017, but the applicant withdrew that claim on December 1, 2017. As the claim for IRBs from January 19, 2017 to February 3, 2017 has been withdrawn and there are no benefits owing or being claimed for this period of time or from January 12, 2017 to February 13, 2017, I need not consider a special award for this period of time.

52I need not consider the special award on the basis the respondent unreasonably withheld payment of IRBs after June 23, 2017 as I have determined that the applicant is not entitled to IRBs after that time. However, if I am wrong, I find that it was reasonable for the respondent to rely on the reports of it IE assessors to terminate benefits after June 23, 2017. Accordingly, if I had found the applicant was entitled to IRBs after June 23, 2017, I would not have found that the respondent unreasonably withheld or delayed payments of the IRBs.

(c). Interest

53I have determined there are no benefits owed and, accordingly, there is no interest payable.

V. DETERMINATION AND ORDER

54The applicant has failed to prove that as a result of the accident complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. His claim for IRBs from June 23, 2017 to date is dismissed.

55The applicant’s claim for a special award is dismissed.

56The applicant’s claim for interest is dismissed.

Footnotes

1. 1The parties agreed that should the applicant be entitled to IRBs, the quantum after deduction of collateral benefits is not in issue and is not to be determined by me.
2. 2Westerhof v. Gee Estate, 2015 ONCA 206 [Westerhof]
3. 3The Trial Judge in Westerhof excluded the evidence of the plaintiff’s treating practitioners because they did not file reports and acknowledgement of experts’ duties with the Court as required by Rule 53 of the Rules of Civil Procedure. The Form 53 requires the expert to acknowledge that his or her duty is to the court and not the expert’s client or patient. The Court of Appeal held that the requirements of Rule 53.03 of the Rules of Civil Procedure apply to litigation experts or experts engaged by a party to provide opinion evidence, but not to “participant experts” such as treating health practitioners. A participant expert may give opinion evidence without complying with Rule 53.03 if the opinion is based on the witness’s observation of or participation in the events at issue and the witness formed the opinion as part of the ordinary exercise of his or her skill, knowledge, training, and experience while observing or participating in such events.
4. 4Section 15(1)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 allows the Tribunal to admit any document as evidence at a hearing, whether or not it is admissible as evidence in a court, as long as it is relevant to the hearing.
5. 5Section 6(2)(b) of the Schedule.
6. 616-000874 v Certas Home and Auto Insurance Company, 2017 CanLII 69444 (ON LAT), Burtch v. Aviva Insurance Co. of Canada, 2009 ONCA 479 (Ont. C.A.) paras. 15 and 23
7. 7L.F. and State Farm Mutual Automobile Insurance Company (FSCO Appeal P02-00026, June 3, 2004) [L.F v. State Farm]
8. 816-002000 v Jevco Insurance Company, 2017 CanLII 63617 (ON LAT) [16-002000 v. Jevco]
9. 9Lastowski and State Farm Mutual Automobile Insurance Company (FSCO A13-008008, August 2, 2016) at p.5 [Lastowski]
10. 10A note in the employment file, however, states that the applicant returned to his employer after almost two years absence from work with a note indicating there were no restrictions and no suggestion of a graduated return to work. The applicant’s employer provided the applicant with a physical demands analysis, functional abilities assessment form and a medical report form to take to his doctor to fill out. Dr. Eskander filled out the medical report, stating that the applicant could not return to work because of pain and headache and was unable to perform his job duties because of his physical limitations. He did not state what those physical limitations were and did not fill out the functional abilities form.
11. 11Lastowski and State Farm Mutual Automobile Insurance Company (FSCO Appeal P16-00066, November 7, 2017) The Arbitrator erred in dismissing the arbitration because the applicant failed to make an effort to work at any of the jobs suggested as suitable without considering whether there was medical evidence that the applicant was disabled, capable of doing the suggested jobs and whether they were suitable in accordance with the Schedule.
12. 12Supra., at note 6, page 11.
13. 13Dr. Eskander’s records show the applicant complained of blurry vision about a week after the accident. Dr. K. Hadley, optometrist, initially diagnosed him on June 17, 2015 with gross visual field deficit in the right eye possibly secondary to traumatic optic neuropathy that was later discounted by the results of an MRI taken June 23, 2015. An initial MRI taken on June 11, 2015 did show slightly more CSF fluid around both eyes that was opined by Dr. Luchetti on June 17, 2016 to be either optic neuritis or caused by pressure around the brain of an unknown cause. This discounted by Dr. Stewart, neurologist, in July 2016 who determined there was no increased CSF fluid and Dr. Majl in May 2017 who stated there was no evidence of low pressure CSF headaches.
14. 14Right knee MRI taken August 16 2015. The MRI also disclosed chronic myxoid degeneration of the medial and lateral menisci likely with an internal tear of the medial menisci.
15. 15Stratford general Hospital records, Dr. Eskander’s clinical note dated May 19, 2015
16. 16IE paper review report of Dr. Friedman, neurologist, dated January 8, 2018.
17. 17Report of Dr. Majl, neurologist, dated May 26, 2017.
18. 18Blephitis is a condition of the eyelids in which they become inflamed, red, irritated and itchy and dandruff-like scales form on the eyelashes.
19. 19Dr. McAlister’s consultation note dated October 22, 2015
20. 20The applicant was referred on an emergency basis to the St. Mary’s General Hospital due to concerns Dr. Waind had with respect to the applicant’s left eye. This was determined to be a congenital defect that was later treated with laser surgery and, therefore, has no relation to the accident.
21. 21Exhibit 9, prescription receipts from Pharmasave.
22. 22I did not have their reports, but they were referred to and quoted from in a couple of the reports that were before me.
23. 23The applicant claims the improvement he reported was that the swelling in his right knee went down. However, Dr. Eskander’s August 20, 2015 notes reported that applicant’s limp had improved.
24. 24Dr. Majl diagnosed the applicant with post-traumatic headaches that are multifactorial in origin. Firstly, he has post-traumatic migraine headaches. He also has cervicogenic headaches that results from damage to the C1-3 facet joints, periosteum, and ligaments or trauma to the greater occipital nerves.
25. 25Report of Dr. Stewart dated July 26, 2017 and the attached form titled “BOTULINUM TOXIN TYPE A TREATMENT INFORMATION AND CONSENT FORM”
26. 26The BOTULINUM TOXIN TYPE A TREATMENT INFORMATION AND CONSENT FORM states that the side effects for migraine treatment commonly reported include headache neck pain, facial muscle, drooping of the eyelids, muscle spasm, muscle tightness, injection pain and rash.