In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
[The Applicant]
Appellant
and
Coachman Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR: Jeffrey Shapiro
APPEARANCES:
For the Applicant: Joseph Filice, Counsel
For the Respondent: Harry Brown, Counsel
Heard: In Person on July 31, August 1 and 2, 2017, and by closing submissions completed on February 19, 2018
OVERVIEW
1The applicant (“[the applicant]”) was injured in a series of accidents beginning with a major 2002 workplace accident, and then two motor vehicle accidents (“the accidents”) on July 24, 2011 and August 26, 2012. The latter are the subject of this matter.
2[The applicant]’s impairments from the workplace accident have not resolved. In fact, by the time of the accidents, [the applicant] still had little use of his right wrist, was suffering from chronic pain and depression, and was receiving WSIB & CPP benefits. He submits that the accidents worsened his workplace impairments and caused new issues.
3Regarding the accidents, [the applicant] applied to Coachman for and received benefits under the Statutory Accident Benefits Schedule–Effective after September 1, 2010 (the “Schedule”). When it denied further benefits, he appealed to this Tribunal.
4Before this Tribunal can address the denied benefits, I must decide if [the applicant] should be designated as “catastrophically impaired” as a result of the accidents under section 3(2)(f) of the Schedule, which relates to mental or behavioural disorders. Under the Schedule, a person designated as being “catastrophically impaired” (“catastrophic”) is entitled to enhanced benefits.
5This matter was heard in person over three days, with closing submissions in writing. After hearing the testimony and reviewing the records, I find that [the applicant] is not catastrophically impaired. Further, I find that his current level of impairment was not materially contributed to by the accident.
PRELIMINARY ISSUE
6The issue, therefore, to be decided in this matter is, “Did the Applicant sustain a catastrophic impairment within the meaning of section 3(2)(f) of the Schedule?”
7The parties agree the catastrophic determination relates to either or a combination of both accidents, and also that an award under O. Reg. 664 remains a “live” issue, but it is not part of this preliminary issue hearing.
RESULT:
8I find that [the applicant] is not catastrophically impaired within the meaning of section 3(2)(f) of the Schedule. Specifically, I do not find he suffers a marked (class 4) impairment from any cause, or that his current level of impairment is from the accident.
PRELIMINARY PROCEDURAL AND RELATED ISSUES:
9At the start of the hearing, the parties resolved several procedural motions, except for [the applicant]’s objection to Coachman’s second document book entitled “Hearing Brief of the Respondent.” Although it was filed late, the parties had been working on a joint document brief, when [the applicant] advised he was filing his own, and did, within the proper time frame. Coachman did not. [The applicant] stated concern with five documents, though all appeared on the draft joint version. I found no notice problems. Given the unusual circumstances, I allowed it, but advised if prejudice is alleged when a particular document is actually moved in to evidence, further objection could be made. Ultimately, only one document from that brief was used in the hearing, and no objection was raised as to prejudice.
What Must [The Applicant] Establish? – The Definition of Catastrophic Impairment
10To be deemed “catastrophic”, an applicant must prove he meets one of the eight categories of impairment listed in the Schedule. The relevant definition is s. 3(2)(f), also known as “criterion 8”:
“(f) subject to subsections (4), (5) and (6), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to a mental or behavioural disorder.”
11In simple terms, the Schedule uses a rating system from the Guides. The severity of a person’s mental and behavioral functioning is rated from 1 to 5, in four areas of function (“domains”). A class 1 rating means no impairment, while a class 5 impairment is “extreme” impairment (no useful functioning). A “catastrophic” rating requires a class 4 (marked impairment) or class 5 in any one of the 4 areas. (A slightly different standard applies to accidents after June 1, 2016).
12Three functional areas are at issue in this case: (1) activities of daily living, (2) concentration, persistence & pace, and (3) adaptation.
Causation
13Because this matter involved a series of accidents each potentially impacting [the applicant]’s condition, I invited the parties’ submissions on the appropriate test for causation. While they may disagree for single accident cases, they generally agreed that the material contribution test applies in this case. I note two cases.
14First, in Monks v. ING Ins. Co. of Canada, 2008 ONCA 269, the Court of Appeal considered an applicant seeking benefits from the last of 3 accidents. The parties agreed she was catastrophically impaired and that the 2nd accident was the most significant. However, the applicant claimed that the 3rd accident, though not major, caused a decline in her condition to the point she was rendered a paraplegic, entitling her to benefits under the Schedule. The Court concluded that the material contribution test applies in all accident benefit cases, “including in cases where the benefits claimant suffered from a pre-existing condition prior to the accident in question”.
15While recent decisions question whether the material contribution test still applies in every accident benefit case, it applies when there are a series of accidents. For instance, the Divisional Court in Agyapong v. Jevco Insurance Company, 2018 ONSC 878, considered the causation analysis for an applicant that was seeking a benefit as a result of two motor vehicle accidents 10 days apart, but was already suffering from recent psychological injuries from a knife attack and long-standing work related physical issues. The Court held that the applicant must establish that the second accident materially contributed to his injuries in a more than a de minimus way, or that “in practical terms,” that “this required proof that the Applicant’s condition was materially worse than before the accident.”
16In Agyapong, the Court found the arbitrator’s conclusion reasonable that “the Applicant’s physical and mental condition was essentially the same before and after the accident,” and while the evidence indicated the possibility that the accident may have caused “some minor short-term aggravation of the long-time complaints…in the longer term, the claimed psychological ramifications clearly pre-date the subject accident, and the physical injuries reported post-accident appear to be little more than a re-hash of the existing panoply of pain-related complaints.”
17Thus, [the applicant] must establish that, on more than a temporary short-term basis, his condition is materially worse after the accident than compared to before it, and that the motor vehicle accidents materially contributed to his injuries in a more than a de minimus way.
Background – Pre-Accident
18Born in 1967, [the applicant] moved to Canada in the early 90s. English is his second language. He was a physical laborer, and performed construction jobs until January 1, 2002, when he fell more than 10 feet from a house gable while working.
19Unfortunately, that 2002 workplace accident left him with little use of his right hand and ongoing pain and depression from which he has not recovered. His first three visits to the hospital did not identify his right wrist as fractured, so by the time an MRI revealed the fracture, it could not be set properly. Three surgeries from 2004 to 2008, did not relieve the pain and may have made it worse.
20From 2002 to the 2011 accident, [the applicant] saw many treating doctors and assessors for the WSIB and CPP claims – resulting in a 1000+ pages of records documenting his medical, psychological and functional impairments. I note key findings:
a. In 2009, he was diagnosed by Dr. Diana Kljenak, a psychiatrist, with Major Depressive Order with Anxious Features and Chronic Pain Syndrome.
b. In November 2010, Dr. Zurowski, a psychiatrist at Toronto Western, noted that any movement of his wrist, even walking, aggravates the pain, difficulty with fluctuating moods, frustration, medication causes dizziness and anxiety, and sleep issues because of pain. He takes morphine, a fentanyl patch, Imovane, and smokes marijuana for pain, and “has tried numerous anti-anxiety, antidepressant medication,” and numerous anti-depressants. [The applicant] “clearly has chronic pain, with concomitant anxiety and depression.” He recommends behavioral measures, such as teaching him “pacing.”
c. [The applicant] was found permanently disabled and eligible for CPP benefits in 2010. A WSIB appeal decision found that as of 2014, he was unlikely to ever return to employment, and granted full benefits.
d. In contrast, a May 10, 2011 examination from CPM Health Centers does note improvement in neck and should pain, yet visits before and after show ongoing pain that fluctuates – and major medication and headaches.
Positions of the parties – Dramatically Different Perspectives
21[The applicant] submits that despite his medical history and inability to work, his pre-accident conditions had stabilized and even improved, so that he was doing okay. The accidents then aggravated his physical and psychological conditions and caused new physical complaints. His evidence focused on a before and after picture - attributing the decline to the accident. He suffers from (1) (exacerbated) Pain Disorder Associated with Both Psychological Factors and a General Medical Condition; and (2) Major Depressive Disorder, Single Episode, Moderate, chronic. He argues that the accidents caused a “material contribution” to his overall psychological symptomatology and impairments in function.
22Coachman advanced two different perspectives, which I found at times somewhat contradictory. First, it relies on expert testimony that [the applicant] does not suffer from any diagnosable psychological impairment – and possibly did not even prior to the accident – resulting in no impairment rating under the Guides. Second, Coachman’s main position is that [the applicant] is not credible, surveillance shows he is somewhat active compared to his complaints, the impairments are from the workplace accident and negligibly, if at all, the result of the accidents.
23A focus of the dispute are the discrepancies surrounding [the applicant]’s self-reporting and “invalid” performance on psychological testing. ([the applicant]’s counsel referred to the different psychological reports as the “crux of the case.”) [The applicant] submits the “invalid” results are due to cultural and education factors, but the testing can still be interpreted. Coachman argues that [the applicant]’s invalid results are extreme and his assessors did not ‘benchmark’ the pre- and post-accident conditions. The parties had a similar argument on the orthopaedic issues and OT assessments.
24Those disputes translate into dramatically different impairment ratings: [the applicant] submits he suffers a marked (Class 4) impairment in 3 of 4 functional areas, and moderate (Class 3) impairment in the 4th (Social Functioning), while Coachman submits the proper rating is nil, resulting in a (Class 1) impairment rating. The parties’ Whole Person Impairment ratings are equally dissimilar: [the applicant]’s evaluators rated WPI at 52%, while Coachman rated WPI at 0%.
Does [the applicant] suffer a class 4 (marked) impairment due to a mental or behavioural disorder as a result of the accidents, and is thus, catastrophically impaired?
[The Applicant]’s Evidence
25[The applicant] testified that on June 24 2011, he was rear ended, and after three days began feeling pain in his left arm, neck and back.
26On August 26, 2012, he was again rear-ended as part of a three vehicle car accident. He felt pain in his back, could not walk or move, and believes he hit his head and lost consciousness. He drove home, and went to a doctor a few days later, complaining that he could not walk, of low back pain and pain in his skull. He feels he sustained issues to his low back, knees, shoulder, neck, head, and left arm. Initially, he received physiotherapy three times a week, which has been reduced to the current amount of 1 once every 3 weeks. His medication increased, and he started taking meloxicam and gabapentin. He believes he has gotten continually worse following the accidents.
27[The applicant] stated that his activity level declined after the accident. Before the accident, he:
a. Mopped and sometimes cleaned the bathrooms, helped with laundry or limited cooking, but “not too many things in the house.” Outside the house, he cut the grass, with pain, cleared snow, and maintained the surroundings.
b. He drove up to an hour to Barrie, with pain, and preformed most of his personal care, but did switch to clothes that were easier to put on.
c. He saw “five or six” friends, mostly at home, occasionally at a park.
d. Was smoking (only) 2-3 joints a day (for pain).
28After the accidents:
a. He had new pain in his neck, low, middle and upper back, and left arm.
b. The medication helped take the pain down to a 7-8.
c. He can’t perform too many activities since the accidents, but does “rarely” shop when his wife is not up to it. It frustrates her if he joins her, because he rushes her because he’s in pain. He doesn’t help in the house anymore.
d. He needs help with some personal care, such as reaching his feet, and putting on pants in the morning.
e. He only has one friend that comes over.
f. He occasionally cuts the grass, but over 3 days.
g. He sees grandchildren less – two to three times during summer – but more since they moved closer to him in 2007.
29On cross-examination, [the applicant] acknowledged differences. For instance, records from May 2010 describe the pain in his shoulder was up to his back, he could only move his shoulder a small amount (20 degrees), he looked sleepy and had gained weight in the last year, and his posture was bent forward, his head only turned slightly, and left shoulder was dropping. In May 2010, he was also taking Fentanyl, Tylenol 3, Cesamet and MS Contin for pain. Likewise, he also agreed that from 2007 up to the 2011 accident, he could only drive 15 minutes at a time, until the pain starts, and during that period, the condition was severe and debilitating so he couldn’t do most of his activities. In response to questioning, he acknowledged, “Yes, it [the pain] was severe.” And before and after, he continued driving and helping his wife. He admitted that since, he has driven to the mall, Lowes, purchased building supplies for other workers at his house.
30He also stated he stopped going to Dr. Kljenak at Toronto Western Hospital in 2010 because he was not feeling like himself, and started feeling better when he stopped taking “all the pills.” Yet, records show he continued to see other practitioners on the Toronto Western team up to and after the first accident and after stated he was “about the same.”
31[The applicant] tendered the reports of psychologist Dr. Cathy Notarfonzo, Coachman’s prior IE assessor. Her diagnoses are clearly at odds with Coachman’s current psychologist, Dr. Prendergast. Her 2013 and 2015 assessment reports, and 2015 executive summary that also summarizes reports from an OT and orthopedic surgeon, generally concluded that an “adjustment disorder appears the direct result of the…accident,” and that her current diagnosis of Pain Disorder is an “aggravation of a pre-existing disorder.” Her August 2013 reports notes:
a. [The applicant] stated that prior to the accident he was not preforming any housekeeping tasks. (This could be referring only to the 2012 accident.)
b. He reported new pains in his legs since the 2012 accident.
c. She found him to be a poor historian.
d. A 2013 Chiropractic IE Assessment opined he displayed “self-limitation.”
32[The applicant]’s wife testified that his “pain is real”, chronic and interferes with his daily living. She believes he is worse since the accidents, though I found her testimony unclear on that point.
33[The applicant] relies on Omega Medical’s Catastrophic Impairment Evaluation to establish his “marked” impairment ratings. Psychologist Dory Becker, the key assessor, testified. The team’s reports were submitted, i.e. a Summary & Analysis Report, a file review, Physical Impairment Evaluation (Dr. Sangha), and an Occupational Therapy In Home Evaluation (Justin Moy, OT).
34Dr. Dory Becker diagnosed [the applicant] with Pain Disorder Associated with both Psychological Factors and a General Medical Condition, and Major Depressive Disorder, Single Episode, Moderate, Chronic, and concludes that [the applicant] suffers a marked (Class 4) impairment in 3 of 4 areas: Activities of Daily Living, Concentration, Persistence and Pace, and Adaptation.
35Dr. Becker opined that the accidents “materially contributed to his current psychological symptomatology and associate impairments in functioning,” noting he “clearly articulated [to her] how these accidents contributed to the onset of new pains, exacerbation of pre-existing pains and…depressive symptomatology secondary to increasing pain and perceived limitations.” She notes, “it should be reiterated that his pre-accident history of pain and depression could have made him more vulnerable to the deleterious effects of the subject accident,” and his condition may not have reached maximum medical recovery, but he has met the two year time requirement for impairment ratings under the Schedule.
36Dr. Becker explained that in [the applicant]’s case, “a review of his participation in self-and household chores was particularly helpful” for her, and they went into a lot of detail during the assessment, “teasing out” a before/after picture. He was able to discern and explain, for instance, that leg pains started after the 2012 accident.
37Dr. Becker utilized the Personality Assessment Inventory (PAI) psychometric test, which has embedded validity measures to tell if a person is paying attention or “faking good or bad.” One scale showed an invalid response, but given cultural and language norms, she felt such a score was not uncommon. She found him credible, but at the same time, appeared to me to express some reservations.
38On cross, Dr. Becker admitted she was unaware of the full spectrum of medications [the applicant] was taking prior to the accident or that at one point he was hearing voices, but she was aware that he was severely depressed and believes if “psychotic features” truly existed it would be noted in a diagnosis, but it seems it’s not. I note that “psychotic features” were noted by Dr. Diana Kljenak in 2009. She agreed that the actual mechanics of the 2011 or 2012 accidents do not appear to be a “psychological stressor” or a traumatic event [such as causing Post Traumatic Stress Disorder] and that her history of what he can and cannot do is reliant on his subjective complaints.
39Dr. Becker also relied on the In-Home Evaluation of Justin Moy, O.T., of Omega, who concluded [the applicant] has “adapted poorly and his level of function has deteriorated since the motor vehicle accident.”
40Mr. Moy found that [the applicant] showed gradual emotional deterioration while performing simple tasks, such as preparing a meal followed by completion of the coding activity, and displayed frustration completing coding and calendar activities - in contrast to Ms. Blaney’s findings. Yet, [the applicant] was pleasant and cooperative, smiled frequently, and participated in the 2.5 testing without any breaks. He safely preformed kitchen tasks. He displayed pain-related behaviors, i.e. facial grimacing, stiffness, etc., and indicated he was unable to participate in an outdoor community functional actively during the assessment that involved going to nearby grocery store to perform a list of tasks. Mr. Moy noted “[b]ased on client report and observation…, there appears to be an element of avoidance and poor motivation required for most activities due to his physical impairments.”
41[The applicant] told Mr. Moy he drives up to 35 minutes, but it feels like needles, and he has driving anxiety. Prior to the accidents, he was fully independent driving a truck. He said that he has few friends, citing his pain and mood. He showed constant weight shifting. [The applicant] completed literature and English courses, yet no such courses were reported to other assessors though English was discussed.
42Dr. Harpreet Sangha, a physiatrist on the Omega team, found “many self-limiting behaviours, especially with any ROM testing”, but offered impairment ratings.
43Dr. Manuel Vasquez, a doctor with a chronic pain focused practice, testified as a treating physician. His testimony was not useful for history or causation, as he first saw [the applicant] after the accident. He relied on the history given by [the applicant], and did not review the WSIB or CPP file, although the work-place fall was the major issue he was treating. He was only aware of [the applicant]’s pain medication prior to the car accidents, but not the anti-depressants. He did note that for a chronic pain patient with all the medication, he would expect concentration problems.
44[The applicant] submitted Dr. Igor Wilderman’s August 3, 2016 Independent Medical Evaluation for Chronic Pain, which appears to be requested by [the applicant] or his doctors. He diagnosed [the applicant] with chronic pain, fibromyalgia, TMJ, and numerous other issues, including Moderate PTSD. [The applicant] developed chronic pain disorder that prevents him from partaking in daily activity as compared to prior the accident. Chronic Pain can exist in the absence of objective evidence, and often does not respond adequately to medical, physical, or psychological care. The doctor opined that the workplace condition was well managed prior to the accidents, but that the prior condition rendered him more vulnerable to the current condition.
The Insurer’s Evidence
45West Park Assessment Centre conducted a catastrophic evaluation for Coachman in 2016, and addendums in 2017. Coachman called the team’s psychologist and orthopaedic surgeon, and relied on the reports of the Occupational Therapist.
46Dr. David Prendergast conducted a psychology IE on July 20, 2016, and issued a report dated October 12, 2016, and a “Material Review” report dated April 21, 2017. His key finding was that “this gentleman was not being entirely straight with me, and I didn’t find any objective evidence of psychological problems.” He concluded that [the applicant] had a 0% WPI rating and a Class 1 (no impairment) under the four domains. There were several noteworthy points to his testimony.
47First, he expressed his evaluation showed (in my words) [the applicant] was dishonest and deliberately exaggeratory, based on several factors: (1) His psychometric testing produced invalid results, with results on the “REY” so low that it’s highly unlikely that his limited education would have been the cause, the MSPQ showed over-reporting physical problems, and on the TOMM Memory Test, which should be free of educational concerns, “His responses were quite extreme. You would have to go out of your way to choose the wrong item in order to do as poorly as he did.” (2) Testing by Drs. Becker and Notofonzo also produced invalid or incomplete results. (3) [the applicant]’s interview did not demonstrate any symptoms that indicate post-traumatic stress disorder, depression or a driving phobia, such as tearfulness, agitation or flashbacks. (4) He maintained a sense of humor, yet displayed a high degree to pain related behavior, walking slow, standing several times to stretch, tense facial expressions, and frequent comments upon his pain.
48Second, during Dr. Prendergast’s testimony, it became clear that he was unaware that two different versions of his report existed, creating an inference that his report had been altered without his knowledge. That discovery came to light during his testimony when he was providing page citations that did not match the version that Coachman had previously circulated and entered into evidence. The copy the doctor brought with him was a 60-page report, dated July 25, 2016 on his own letterhead, yet the report Coachman had disclosed was 44-pages, dated October 12, 2016, and on West Park’s letterhead.
49On inquiry, Dr. Prendergast explained that his version was the draft he sent to West Park and the clinical portion would be the same. West Park’s version, he believed, simply included the OT and in-home assessment reports, but yet he would have reviewed those. However, [the applicant]’s counsel’s questioning established that the OT Report was not yet available at the time the draft report was written, at least minor tinkering can be found in the wording, and the focus of his report is somewhat different (Criterion 7 & 8, versus just 8). Still, he maintained, it’s likely he did the editing, but he could not be sure if the editing occurred after his last approval, and he doesn’t recall switching [the applicant]’s name from Mr. R. to Mr. A.R.
50Third, his testimony changed on questioning. At first, he said he was disagreeing “to an extent” with prior assessors that found [the applicant] had diagnoses from the work-related accident, but when pressed during cross-examination, he broadened his opinion to even disagree with prior assessments, including Dr. Notorfonzo’s, despite it being several years earlier. Then on re-examination, he again changed his answer, correctly limiting it to that he can only comment as to the date of his assessment. His waiver back and forth on this point of inherently claiming [the applicant] had fooled so many previous assessors, may simply be due to strong cross-examination, but it weakens his testimony. Ultimately, for balance, he did clarify that while he could not confirm objective evidence of a psychological impairment or distress based on his interview and test data to formally diagnose [the applicant] with a disorder – he did acknowledge [the applicant] could still have distress, a history of pain problems, or limitations.
51Fourth, he acknowledged that medication could help with pain or mood or make a person more relaxed and that would help with the exam and mask symptoms such as anxiety or depression, but felt other signs would still be present.
52Fifth, [the applicant] stated he was a good driver, doesn’t have any friends with whom to socialize, and does drive his wife to the grocery store, but rarely goes inside. Regarding house maintenance, he shops for contractors for necessary repairs effectively and at a reasonable cost, and he has ability to budget and complete financial tasks. I note that surveillance videos, discussed below, show otherwise.
53Dr. Paitich, an orthopaedic surgeon, conducted an IE Catastrophic Determination on July 28, 2016 issuing an October 12, 2016 report, and a surveillance Review Report on April 21, 2017 after reviewing surveillance from July of 2015. He concluded that in the 2011 and 2012 accidents [the applicant] sustained now resolved myofascial strain injuries to the cervical and lumber spine and contusions.
54He was “quite certain that [[the applicant]’s] pain was exacerbated temporarily, no question”, but the pain would be temporary as soft tissue injuries heal “just fine”, even with people that have significant pre-existing injuries. He cited studies, noting that his type of injury heals within six weeks 50% of the time, and within 6 months 90% of the time. He opined [the applicant]’s stated physical symptoms are “in no way causally related to [the car] accident[s]”, warranting a 0% impairment rating.
55Dr. Paitich noted inconsistencies. For instance, [the applicant] said he did not recall lower back pain following the WSIB accident, but yet records show otherwise. [The applicant] was only able to rotate his head 10 degrees when asked, yet he easily rotated at least 50 degrees to the right doing other movements. [The applicant]’s movements in the surveillance video were basically normal, except for his wrist brace, yet [the applicant] was unable to perform some of the same movements during the exam.
56I found Dr. Paitich’s surveillance analysis helpful to explain the movements that he was looking for that would indicate impairments, but that were not present. He found similar ‘normal’ movements when walking in the examination room.
57Kathryn Blaney, OT, conducted an in-home assessment on July 18, 2016, and issued a Catastrophic Impairment Determination OT’s Report dated October 12, 2016 – the report added to Dr. Prendergast’s. I found her report to be helpful. While she did not offer specific impairment ratings, her report observes [the applicant] preformed fairly well in functioning in the four domains, but not flawlessly.
58[The applicant] said he drives his wife to the grocery store, “but never goes in himself” and also that he “might go in to the grocery store “once a year””. He claimed complete independence in his personal tasks prior to the 2011 accident using his left hand and completed all housekeeping and home maintenance tasks. Since the accident, his sleep, mood and ability to do most of his activities has decreased. He is responsible for the banking, budgeting and bills, and goes to the bank.
59He appeared calm and relaxed during the assessment. No breaks were requested, and he attended well with no lessening of his engagement during the assessment. He appeared sincere and factual. He generally maintained focus and followed instructions, only missing a few in completing the ‘Pain Diagram.’ She observed spontaneous standing a few times, which did not seem excessive.
60He did display “very restricted neck movements…when formally asked; however, neck rotation was somewhat fuller when trunk movements were being assessed”, and noted a similar discrepancies on other movements.
61Coachman introduced the WSIB and CPP files, including Dr. Jaan O. Roos’ April 28, 2010 report. Dr. Roos opined that [the applicant] does not appear to be embellishing his symptoms, experiencing 10 out of 10 pain in his right arm, neck and shoulder that seems to be spreading. Medicine provided little relief, with [the applicant] then taking Fentanyl, Tylenol 3, Pantoloc, and Cesamet. Psychological assessments showed he is a poor fit for remunerative work for cognitive and educational reasons. He opined [the applicant] is not able to return to work “in any capacity,” and muscular atrophy in his right upper limb has progressed, with deterioration likely. The above mentioned April 2009 letter from Dr. Kljenak, diagnosed chronic major depressive disorder, with psychotic features and chronic pain.
Surveillance
62Coachman showed, and questioned [the applicant] on, surveillance footage taking place in 2015 and 2017. Dr. Paitich viewed and commented on it, as above, but neither psychologist viewed it, as discussed below. I found the surveillance important.
63In one sense, it was not inconsistent with a person suffering from pain disorder. It does not show [the applicant] doing heavy labor, lifting or bending, and the seemingly light carrying he does is with his left hand, favoring his right hand. Yet, it did show a mildly – but distinctly – increased activity level than what he described to me and the assessors…and that difference is important. A few examples: (1) December 2015 footage show [the applicant] making a few errands such as stopping at Home Depot, and carrying some items, and (2) February and March 2017 footage shows [the applicant] on errands, shopping in a mall, Lowes, Shoppers, carrying a few bags and walking in a neighborhood. Yet, he consistently told assessors that he rarely, if at all, does those activities.
64Although Coachman – correctly in my opinion – provided the surveillance to both psychologists prior to the hearing for their comment, [the applicant] denied his consent for them to view it. During the hearing, Coachman asked that I order it be shown to Dr. Becker. Dr. Becker explained that her licensing college (by Bulletin 224.3) does not permit her to view the surveillance without the client’s consent. While I may have the authority to order it, I did not as I had viewed the video, [the applicant] had been cross-examined on it, and the parties, or I, could ask the witness questions, including hypothetical questions, based on the video. Thus, the witness’s testimony could be explored based on information in the video, without her violating her college’s practices.
65Dr. Becker felt that she is disadvantaged having not viewed the video, but opined that as [the applicant] had major depressive disorder before and after the accident and the major difference is a deterioration in his mood, thus the surveillance won’t likely change the diagnosis, but “the impairment rating would be up for grabs a little bit….”
66The refusal created a type of Browne v. Dunn issue, in that Dr. Becker never saw important evidence. In a sense, [the applicant] essentially frustrated the open testing of evidence – testing that may have helped him. Nevertheless, it was [the applicant]’s choice of strategy and I felt we could proceed.
ANALYSIS
67As a threshold matter, I accept that [the applicant] experiences significant pain. On that point, I accept his wife’s testimony that his “pain is real”, chronic and interferes with his daily living. However, I found her testimony – as all of [the applicant]’s evidence – less reliable in sorting out the level or location of pain, impairments, and general function from before and after the accidents, or even currently. For instance, she said that now [the applicant] can only drive for 30 minutes, yet agreed that a CPP application before the accidents stated he could only drive 15 minutes.
68Thus, while accepting that [the applicant] does experience pain, the questions that remain are whether [the applicant] (1) suffers from a mental or behavior disorder, and if so, (2) does the disorder significantly [‘catastrophically’] impedes [the applicant]’s useful functioning, and (3) was the disorder caused by the motor vehicle accident.
69Regarding the diagnosis, I find that [the applicant] does have a pain disorder and depression, although possibly not to the full extent that [the applicant] suggests. Thus, I accept Dr. Becker’s conclusion on diagnosis over Dr. Prendergast’s, for several reasons.
a. [The applicant] has been consistently diagnosed with a pain disorder and/or depression since at least 2008, by numerous assessors, including Coachman’s own, who did so despite “invalid” indicators.
b. Both psychological assessors agreed that a lack of formal education and cultural and language issues could at least partially explain the poor validity results. Dr. Becker concluded that validity tests were not particularly reliable, and tried to interpret the remaining data. Dr. Prendergast concluded that regardless of educational issues, the results were so extreme, and not supported by other objective evidence, that he concluded that [the applicant] “wasn’t being straight” with him.
c. While [the applicant] wasn’t entirely “straight” with Dr. Prendergast, Dr. Becker’s approach fit with the overall evidence – [the applicant]’s behavior, other diagnoses (including IE assessor Dr. Notarfonzo’s on “invalid” results).
d. While I accept some of Dr. Prendergast’s testimony on other points, the altered report and his comment that he disagreed with long-past prior diagnoses, a comment he soon retracted, weakened the strength of his opinion in this matter.
e. I also accept Dr. Becker’s comments that the surveillance wouldn’t change the diagnosis, but might affect the functional ratings.
70Regarding [the applicant]’s functional ability, the evidence and its many inconsistencies lead me to conclude that [the applicant] suffers impairments, but he is overstating them, and they are not “marked” in any of the 3 areas, or at least, he has not proven on a balance of probabilities “marked” impairments, for the following reasons:
a. Dr. Becker’s opinion finding marked impairments is ultimately based on [the applicant]’s self-reporting, which I find unreliable.
b. Most assessors found self-limiting behaviors, such as Dr. Sangha from the Omega team, Dr. Paitich, Ms. Blaney, and a 2013 Chiropractic IE Assessment mentioned by Dr. Notarfonzo.
c. Numerous assessors noted [the applicant] displayed more limited physical ability when asked, as compared to behavior observed when not formally tested.
d. Psychological assessments consistently produced invalid results. While known factors may affect the results, I accept Dr. Prendergast’s opinion that the invalidly measures were extreme and that [the applicant] was “not being straight” with him. Besides validity testing, other tests seemed to show pain magnification even compared to chronic pain patients.
e. [The applicant]’s pain presentation appeared worse with Coachman’s assessors, than at his own. For example, Coachman’s assessors noted pain behaviors such as frequent shifting, yet during Dr. Becker’s March 2016 assessment “he remained seated for most of the interview but stood briefly on one occasion to stretch. He did not present with overly dramatic pain behaviors.”
f. [The applicant]’s self-reporting has proven unreliable. Dr. Notarfonzo notes [the applicant] is a “poor historian”; other assessors comment similarly. The evidence also highlights that [the applicant] appears to have given different accounts of his pre- and post-accident condition to various people, and surveillance shows a similar, but noticeably more, active lifestyle than he suggested.
71Regarding surveillance and different accounts, several examples are important:
a. While [the applicant] states he rarely goes grocery or other shopping – Ms. Blaney records him saying he “might go in to the grocery store ‘once a year’” – surveillance shows he is doing those things regularly. To be clear, he is not displaying a healthy level of functioning and certainly not heavy lifting, but there seems to be a distinct difference from what he claims.
b. [The applicant] presented a picture of short neighbourhood driving trips, but yet he drives more often and farther, such as from his home to Dr. Vasquez in Toronto, once a month. Mr. Moy records he was fully independent in driving a truck (presumably his pick-up truck) prior to the accidents, but in other records he claims only being able to drive 15 minutes.
c. He testified that he only has one friend that comes over, but other histories describe his friendships having gone from 10 or so to four or five.
d. He told Dr. Notarfonzo he was not preforming any housekeeping tasks prior to the accident, but yet now claims he cannot do the housekeeping tasks he once did. Likewise, Ms. Blaney notes he was completely independent in his personal tasks prior to the 2011 MVA accident with modifications, but other accounts disagree.
72I also note that Dr. Becker heavily relies on Mr. Moy’s OT Report to find marked impairments, but acknowledged that Ms. Blaney’s OT Report did not support marked impairments. I found Ms. Blaney’s report more persuasive.
73Regarding causation, I do not find that the accident caused him a downturn in functioning, or as expressed in Agyapong that his “condition was materially worse”. In fact, I find that his overall functioning in the years leading up to the hearing appear similar to before the accident, and even slightly improved. He may have better and worse days, but the only evidence supporting a downturn is his own self reporting or other evidence that is based on his self-reports, which I find to be unreliable and not supported by other evidence.
74For instance, in addition to the many examples cited above, Dr. Diana Kljenak, Dr. Zurowski, and Dr. Roos all record depression, functional limitations and medication use just prior to the accident that were equal or worse than his current complaints, and worse than what appears to be his true level of functioning. Similarly, [the applicant]’s driving tolerances prior to the accident are worse than what he can do now. This is not to say that [the applicant] is not still suffering from the workplace incident – and in fact I think he is suffering quite significantly – but I do not find that the accidents materially contributed to his current condition.
75I also note that in many regards this matter is similar to the Agyapong case in that his current difficulties “appear to be similar to the serious and ongoing psychological sequelae of [an incident] for which he was being treated in the months [and years] before the two accidents.”
76In conclusion, I do not find that [the applicant] meets the definition of catastrophically impaired as defined by the Schedule, for two reasons. First, I find that the mental and behavioral functional limitations have been overstated and do not meet the definition of catastrophic impairment under the Schedule, and second, his functional limitations are not caused by the 2011 and 2012 accidents in a material way.
Costs of the Reconsideration
77Each side has asked for its costs. Rule 19 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) allows for costs, if during the proceeding, a party acted “unreasonably, frivolously, vexatiously, or in bad faith”. The Rule does not tie costs to a successful result, rather, they are tied to a party’s improper conduct.
78With regard to Coachman’s claim, it simply asks for costs, without explanation. While it was successful on the preliminary issue, I do not find that it has shown that [the applicant] acted unreasonably, frivolously, vexatiously or in bad faith.
79With regard to [the applicant]’s claim, he seeks costs of $10,000 based on Coachman’s actions during a series of events regarding the length and timing of closing submissions, which delayed the matter for six months, ultimately resulting in a reconsideration decision of Associate Chair J. Batty, dated January 25, 2018.
80The facts are discussed in the January 25, 2018 decision and [the applicant]’s submission on pages 16-17. In brief, at end of the hearing, I asked the parties to provide submissions on the causation standard. They agreed a four page limit was sufficient, with Coachman’s counsel suggesting a week timeframe; I gave an extra day. [The applicant] filed on time, Coachman did not, and then after the time expired, sought leave to file longer and broader submissions. Although I allowed it, Coachman still did not properly file. It sought even larger submissions, and after a series of submissions and decisions, ultimately filed a submission triple the length than the last expanded page limits, which I struck. All told, I issued 6 orders, the last of which was appealed. On reconsideration, a submission schedule was finally set, while deferring costs back to me. Associate Chair J. Batty, was “struck” by several things, including:
“40…Coachman’s counsel asserts his client “found it impossible” at the time to comply with the adjudicator’s request for four pages of supplementary written submissions on the question of causation. In fact, the transcript shows not only that the prescribed limit was on consent but that Coachman’s counsel suggested this limit at the hearing as opposed to the longer one offered by the adjudicator, had no issue with providing submissions at the same time as [the applicant]’s counsel, and said that those submissions could be completed in a week.”
81Regarding conduct on appeal, the decision at paragraph 41 and 42 also expressed concerns of the length, focus, and scope of Coachman’s submissions.
82A.C. Batty specified that if the parties are seeking costs, then they could add two pages on costs to their main submissions on the hearing. [The applicant] did so, detailing the events, but with no basis for the quantum. Coachman’s response, however, did not address costs at all, or respond to [the applicant]’s submission on that point.
83I find that the series of events was “unreasonable.” It caused [the applicant] – who is seriously impaired – a delay in receiving a decision by six months. Submissions should have closed by early August 2017 as agreed, yet they did not close until late February 2018. Coachman was successful on the reconsideration, but the entire process and delay stems from Coachman’s continual failure to comply with timeliness and page limits – which it agreed to at each step of the way.
84As for the amount of the quantum, context is important. I do not find that Coachman’s acts were malicious or with any intention to harm [the applicant], nor any impropriety during the hearing (in fact, I commend both counsel for their excellent and vigorous representation of their clients), nor do I intend to imply that one missed deadline, or even a changed position, violates the Rule’s high standard. In fact, I allowed Coachman a late and expanded submission. Yet that did not end the matter, though it should have. Thus, it’s the cumulative effect of many small actions regarding the submissions – coming from one party – that triggers the Rule’s high standard. [The applicant] timely filed his submission, but was forced to appear for conferences, draft several unnecessary filings, and suffer delay.
85Neither party provided guidance on the quantum. Given the unreasonable, but not egregious, actions and, to be in line with the Tribunal’s other decisions, I set costs at $1,500.00.1
CONCLUSION
86This matter largely turns on [the applicant]’s lack of reliability, and perhaps credibility. While I accept that he has a pain disorder and depression, and that he has real functional limitations both physically and as a result of a mental and behavioural disorder, I do not find he is catastrophically impaired as defined by the Schedule, for two reasons. First, I find that the limitations have been overstated and do not meet the definition of catastrophic impairment under the Schedule, and second, his functional limitations are not from the 2011 and 2012 accidents in a material way.
87However, while Coachman was successful on the catastrophic impairment issue before me, for the reasons above, [the applicant] is entitled to $1,500 in costs stemming from the closing submissions. The application is dismissed.
Released: December 18, 2018
Jeffrey Shapiro
Adjudicator
Footnotes
- See, for instance, 17-005302 v Aviva Insurance Company of Canada, 2018 CanLII 83535 (ON LAT), also awarding costs to the unsuccessful party.