[The Applicant] v. Certas Home and Auto Insurance Company, 2019 CanLII 34591

Citation: [The Applicant] vs. Certas Home and Auto Insurance Company, 2019 ONLAT 17-007345/AABS

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(s)

and

Certas Home and Auto Insurance Company

Respondent

DECISION

PANEL: Cezary Paluch, Adjudicator

APPEARANCES:

For the Applicant: [The Applicant] Mark S. Grossman, Counsel

For the Respondent: Mike Foster, Claims Adjuster Celina Agüero and Anna-Marie Musson, Counsel

Interpreter: Guirmai Abraha (Tigrinya)

Court Reporter: Marbrae Reporting

HEARD IN PERSON: November 1, 2 and 21,¹ 2018 (Kitchener, Ontario)

OVERVIEW

1[The Applicant] (the “applicant”) was born in Eritrea on January 1, 1984 and immigrated to Canada in 2005. On May 21, 2009 she was injured in an automobile accident when she lost control of her vehicle, went off the road and struck a tree head-on (“the accident”). At the time, she worked as a dishwasher and kitchen helper at a retirement residence. Prior to this, she was also employed as a cleaner at a bus terminal through an employment agency. She did not return to either of her jobs and claims she suffered physical and psychological injuries including chronic pain that prevent her from returning to any type of work as a result of the accident.

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the ''Schedule'')² from the respondent. The respondent paid the applicant income replacement benefits (IRBs) from 2009 up to May 14, 2016³, which is more than 104 weeks from the date of the accident. It terminated IRBs based on the findings of various s.44 reports. The applicant feels that due to her limited command of English, grade 8 education, general labour experience, lack of any specific skills, chronic pain and physical restrictions, she is unable to work.

3The respondent also denied her claim for the cost of a chronic pain assessment on the basis that they are not liable to pay any expenses that were incurred before submitting a treatment plan (OCF-18). As a result, the applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (AABS) (the “Tribunal”) and the matter proceeded to an in-person hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is the applicant entitled to receive a weekly IRB in the amount of $223.50⁴ for the period of May 14, 2016 to date and ongoing, denied by the respondent on May 10, 2016?

(ii) Is the applicant entitled to a cost of examination in the amount of $6,045.00 for a chronic pain assessment recommended by Humber River Medical Diagnostics in a treatment plan (OCF-18) submitted on September 26, 2016, and denied on January 3, 2017?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5Based on the totality of the evidence before me, the applicant has failed to demonstrate that, as a result of the accident, she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. As a result, she is not entitled to an IRB in the amount of $223.50 per week for the period of May 14, 2016 to date and ongoing. In addition, she is also not entitled to payment for the cost of the chronic pain assessment. Therefore, no interest is payable.

ANALYSIS

6A two day in-person hearing was conducted with the final third day being conducted by teleconference. The applicant and treating and expert witnesses testified at the hearing. I have considered all of the evidence led during the hearing and only summarized what I found relevant to my determination below.

Entitlement to Income Replacement Benefits 104 Weeks after the Accident

The legal test:

7The insurer’s obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-10 of the Schedule.

8To be entitled to ongoing IRBs more than 104 weeks after the accident, the applicant must satisfy the post-104 week disability test by establishing on a balance of probabilities that she suffers a “complete inability to engage in any employment for which [she] is reasonably suited by education, training or experience” as a result of the accident.⁵ This is referred to as the “complete inability” test or the “Post 104 Test.” The “complete inability” test for a post-104 IRB is a higher bar than the “substantial inability test” for a pre-104 IRB.

9It is not necessary that the insured person be formally qualified and able to begin work immediately in order for a particular employment to be considered a reasonably suitable alternative. A job for which the insured is not already qualified may be a suitable alternative if substantial upgrading or retraining is not required.⁶

10The parties’ have not raised any issue of the amount of IRBs that may be payable to the applicant. Their submissions focus solely on whether or not the applicant meets the complete inability criteria for the IRBs. The respondent has also conceded that there is no dispute regarding causation.⁷

The applicant’s position:

11The applicant claims that she suffers from persisting and debilitating chronic pain due to injuries to her head, right hand, wrist, neck, shoulder and right leg as a result of the accident which are well documented in the records of her treating practitioners. She spent 4 or 5 days in the hospital, had wrist surgery and claims that she has memory difficulty. In addition, her own doctors, as well as State Farms’ IE assessors, have diagnosed her with cervicothoracic strain, and altered sensation to her 4th and 5th fingers, as well as her entire right arm. She continues to require treatment and take pain and sleeping medication for her physical and psychological condition.

12There is no dispute that the applicant qualified for IRBs up to 104 weeks after the accident, on the basis that she was substantially unable to perform the essential tasks of her pre-accident employment as a result of the accident. In addition, there is no dispute that she qualified for post 104 IRBs from the two year mark in May 2011 until May 14, 2016 which was about 7 years post-accident. Essentially, the applicant submits that nothing really has changed from 2014 when she first underwent a post-104 IRB assessment by Dr. L. Kiraly(who concluded that the applicant suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience) until 2016, when the respondent conducted another insurer examination (IE) which this time concluded that she could go back to work. She submits she is still not able to work because of her pain and memory problems which have not improved.

State Farm’s position:

13State Farm submits that the applicant does not meet the prescribed test for IRB eligibility, and relies on the physiatry IE report of Dr. J. Heitzner and psychiatric IE report of Dr. S. Patel both dated April 27, 2016, to support its position that the applicant does not suffer from a complete inability to engage in any employment for which she is reasonably suited. It also relies on a vocational evaluation with transferrable skills analysis of April 27, 2016. It stopped the IRBs effective May 14, 2016, pursuant to s. 37 of the Schedule.⁸

POST ACCIDENT MEDICAL HISTORY:

Physical Impairment:

14I find that the evidence establishes that from a musculoskeletal point of view, the applicant had fractured her right wrist which required surgery. She continues to have confined sensory neuropathy to two fingers on her right hand. Her current physical symptoms include dizziness, neck pain, right shoulder pain, right arm pain, headaches, low back pain, right leg pain and right wrist pain.

Psychological Impairment:

15From 2009 to 2016⁹, the applicant has been diagnosed with various accident related psychological impairments ranging from major depressive disorder to adjustment disorder with mixed anxiety. Further, she has also been diagnosed with chronic pain syndrome.

16What all these diagnoses mean is that the applicant has had considerable difficulty adapting to and coping with her psychological and physical symptoms, including pain, since the accident.

Complete Inability:

17In February 2013, 3 ½ years after the accident, the respondent’s assessor, Dr. L. Kiraly, based on the Vocational Report from Marcel Jean, dated January 28, 2013, concluded, from a psychiatric point of view, that at the present time, the applicant suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. Dr. Kiraly noted in the report that the primary goal is to improve her symptomatology and once her symptoms are under control and she receives adequate treatment then a return to work could be attempted. It seems to me that the assessors were hopeful in 2013 that since the applicant did not yet reach maximum medical improvement she would improve in the near future with treatment and could return to work.

18Since 2013, the evidence shows that the applicant has reached maximum medical improvement relative to her injuries from the accident and her functional abilities have also improved. For example, the applicant’s physical injuries including the bone in her right hand have healed. In 2018, she was well enough to take very long trips to Eritrea for two months. In 2015 she went for two months to Eritrea and another trip to Ethiopia. [The applicant] was married on May 26 and is actively searching for a home with her new husband. This shows to me an ability to plan and organize her life. She testified that her wrist pain has improved, that the psychological session did help, that her back pain is there all the time and but sometimes it goes up and down. That she is able to wash her plates and cup after she eats sometimes. The applicant did complete 12 psychological counselling sessions, received massage therapy, and counselling for her driving phobia and started to drive. She is currently not being treated for any psychological or emotional disorders. When asked by her counsel in direct examination whether she could do the job of a food demonstrator she answered: “If I don’t have a pain, I wouldn’t be able to do that job, but maybe I can try other jobs.”¹⁰ This indicates to me that she is willing to try some jobs if her pain can be managed. However, the applicant conceded that she is currently not going for any physiotherapy or massage treatment or been referred to a pain clinic or being treated for any psychological disorders.

19In April 2016, 7 years post accident, with the applicant now being 32 years of age, Dr. Patel, concluded in his psychiatric report that the applicant’s condition may have plateaued and that she does not suffer a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience and would be able to engage in any of the occupations listed in Transferrable Skills Analysis. Dr. Patel explained in his report that the applicant’s experience of dysfunctional pain is the barrier for her to return to work.

20As part of his assessment, Dr. Patel assessed function in 4 domains: self-care/activities of daily living, home care, social and vocation function. He noted that the applicant reported that she is independent with respect to toileting, grooming, personal mobility and feeding and has mild difficulties with respect to some of her self-care due to her physical symptoms, notably right shoulder pain and dizziness causing her difficulty with bathing and dressing - other than that her self-care was reported to be normal. She reported that she is able to use the telephone and television, she does not handle finances because of pain and concentration, she does not cook, and does not perform household tasks. From a vocational perspective, Dr. Patel noted in his report that the applicant’s mental state was co-operative, calm, organized and spontaneous. She was able to follow simple instructions, however had difficulties with maintaining attention and became visibly physically and emotionally fatigued toward the end of the assessment. She was able to respond to questioning promptly. In noting her behavioural observations, Dr. Patel testified that she stood for about 20 minutes to stretch, she walked independently without any psychomotor activity or distress. There were no verbal pain indicators such as moans, facial grimacing, positional shifting or self-massaging.

21Dr. Heitzner in his Physiatry Report dated April 27, 2016, also to address post-104 income replacement benefits, from a musculoskeletal point of view, concluded that the applicant has reached maximum medical improvement relative to her injuries from the accident. Dr. Heitzner noted that the applicant had a high perceived level of disability, pain behaviour, self-restricted range of motion and inconsistency on physical examination. At the hearing he explained that the applicant’s own perception of her impairments is different than what he would have expected that she is capable of doing. He did acknowledge that he would not expect her to be able to cut people’s hair but could work as a beauty salon attendant greeting clients, answering phone calls, making appointments. He also opined that she could work as a cashier within a smaller business type setting.

22The applicant’s evidence concludes that she continues to have chronic pain syndrome with a variety of limitations in walking, standing, lifting, running and physical activities. She has trouble with any physical labour and was not able to return to her work as a kitchen helper and server in a retirement home. This is set out in the September 23, 2016 report of Dr. Friedlander.

23On reviewing the entire report, it is evident that Dr. Friedlander’s focus was to summarize MT’s medical history and list her symptoms as opposed to conducting a more specific functional abilities evaluation and determination whether she could do any suitable job. I find the report does not state that the purpose of the report was to assess the Post 104 IRB benefits issue. This is not surprising, as Dr. Friedlander, is a pain specialist, and was requested to provide a pain medicine report and not to specifically address the post -104 week income replacement benefits.

24As well, Dr. Friedlander, does not discuss whether the jobs identified by State Farm in the transferrable skills analysis prepared by Kelly-Ann Smith (or any other jobs) were suitable for the applicant by education, training and experience (aside from noting that beauty salon attendant, ironing/pressing, cashier were added work options). I note that Dr. Friedlander did have a copy of the transferable skills analysis as it was listed as one of the documents that he reviewed in preparing the report. He only generally refers to it in his report by stating “that any work in the vocational assessment would have to be part-time, sedentary and low sensory environment.” He did not consider that some of the proposed jobs may in fact be sedentary. Overall Dr. Friedlander did not assess the applicant’s functionality (ie. standing or sitting tolerance) and did not assesses that functionality with reference to her ability to carry out suitable employment.

25In addition, Dr. Freidlander did not comment on how pain factors into the applicant’s complete inability to engage in any employment for which she is reasonably suited by education, training or experience (aside from saying in a very general way that her impairments prevent her from being able to return to work and likely to affect her productivity in any type of work). Even though Dr. Friedlander recognizes that [the applicant] suffers from psychological impairments and has difficulty concentrating due to the distortion of chronic pain and it is likely to affect her productivity at work, he does not consider the possibility that any of the proposed jobs would be suitable and provide her with meaning and structure in her life which in the end may improve her symptoms. The report provides no insight into the applicant’s functional tolerances or abilities. He made no comment on the applicant’s sitting, standing or walking tolerances.

26Dr. Friedlander reviewed the reports of the respondent’s IE’s assessors and does not agree with their conclusions, but does not provide reasons or an explanation for his disagreement. He made no comment about Dr. Patel’s recommendation that MT should restructure her feelings of pain related to dysfunction to regain involvement in a more meaningful life or that her experience of pain is a barrier to her return to work. He also made no comment about Dr. Heitzner’s opinion that [the applicant]’s own perception of her pain is different than what he would have expected that she is capable of doing.

27In summary, the report does not address the functional issue of whether the applicant was able to engage in any employment for which she is reasonably suited by education, training or experience which is the test to qualify for post 104 IRBS.

28The applicant also relied on the Progress Report dated February 4, 2016 signed by Dr. M. Lotfalizadeh, psychologist, but was prepared by Mihaila Tomescu, psychotherapist (who was trained as a medical doctor in Romania). This report concluded that the applicant’s poor memory, poor attention and poor concentration, were the major obstacles to the applicant being able to return to her pre-accident work. Ms. Tomescu conducted 12 psychotherapy sessions with the applicant from September 18, 2015 to January 2016.

29Ms. Tomescu testified at the hearing and stated that the applicant had severe symptoms of depression and chronic pain and her counselling sessions did not help her much. She concluded that when [the applicant] left her care in January 2016, she was still not able to work. Ms. Tomescu also testified that she attempted to convince the applicant to apply for a program and enrol at Conestoga College. I found this part of her evidence to be significant as far as the post 104 test and [the applicant]’s level of functioning, because the applicant’s own therapist who saw her for numerous sessions over several months, essentially felt that [the applicant] was well enough to go back to college in 2016 and admitted that “from an intellectual perspective she, she can do it, she is a smart person.”¹¹

30At the hearing, the applicant testified that she could not go back to work after the accident because of pain and memory problems and that she has not applied for any jobs since the accident.¹² When asked by her counsel about whether she could do any of the jobs listed in Vocational Analysis prepared by Kelly-Ann Smith, she responded that she could not work as a ‘cashier’ because she could not stand because of back pain. That she could not be a ‘demonstrator’ (ie. like in a Costco that give out free food) because “her mind is not normal.” That she could not be a ‘cleaner’ because she could not bend to vacuum or mop.

31There were some unexplained discrepancies and inconsistencies in the applicant’s testimony and she was evasive at times and often did not remember the timelines, or specific details when questioned. For example, when asked in cross-examination why she did not mention to her family doctor problems she was having with concentration and memory she did not answer the question directly and replied that she tells her doctor all of her problems including problems with sleeping, pain and depression. I also could not reconcile how the applicant’s complains with her concentration and pain and yet is not actively seeking treatment for these ailments. I did not discount her testimony but when faced with inconsistent evidence between the applicant’s testimony and the documentary evidence, or other evidence, I preferred the other evidence. In a case such as this, where many of the complaints are subjective and pain related, the consistency and reliability of the applicant’s testimony is essential.

32It is also worth noting that it appears that Dr. D’Souza has never referred [the applicant] to a pain clinic or to address the applicant’s constant complaints with her headaches/dizziness despite being her doctor since 2014. However, a letter from Dr. R. Faraawi dated January 2, 2013, confirms that Dr. D’Souza did refer [the applicant] to a rheumatologist who concluded that “I have nothing to offer this patient on top of what has already been done. She might benefit from a pain clinic or seeing a psychiatrist to help her cope with her pain.” As well, there does not seem any reference in Dr. D’Souza’s clinical notes to the applicant complaining of difficulty with concentration and memory. A note from Dr. K. Giles, a neurologist, dated June 11, 2010, states that the applicant’s brain is normal and healthy. I could not reconcile how the applicant was able to state numerous times at the hearing that her depression is getting worse and she experiences debilitating dizziness and memory problems yet is not being treated by her family doctor, or any other practitioner for these symptoms.

33The applicant has not identified any suitable employment. She stated at the hearing that she has not applied for any jobs since the accident. As I understand her position, she cannot do any job because of her impairments. The respondent relies on the April 27, 2016, report of Kelly-Ann Smith, a vocational specialist, who prepared transferable skills analysis and determined that the applicant could work as a cashier, demonstrator, specialized cleaner, ironing pressing and finishing occupations, beauty salon attendant and assembler/inspector. Four of these positions were characterized as having “Light” physical demands. Both Dr. Heitzner (Physiatrist) and Dr. Patel also concluded that she is capable of doing the jobs listed in the transferrable skills analysis. Based on the applicant’s testimony and history of employment including her resume, and the report of Ms. Smith, I find that the employment identified by Ms. Smith is reasonably suited by the applicant’s education, training and experience. The wages identified in the report are also within the range of what the applicant was earning at the time of the accident.

34I accept that the applicant experiences pain, however, many people work with pain especially if it is being managed through medication. In the end, I am not persuaded based on the totality of the evidence before me that she does have a complete inability as per s.5(2)(b) of the Schedule. In my view, she may not be able to return to her old job, or it may even be difficult for her to find suitable work, or the work may be hard. The issue is not whether should could return to her previous job but whether she can engage in any job for which she is more suited to her limitations.

35It is clear that challenges with her basic English skills have not prevented her from obtaining work in the past. The applicant did converse with her family doctor and her psychotherapist in English and had a working knowledge of the English language. At the hearing, she also answered some questions in English notwithstanding that the interpreter was there.¹³ She does have a basic knowledge of the English language and knows the letters of the alphabet. She appears to be a very smart person. Kelly Ann Smith’s vocational report notes that she is able to speak, write and read English in a limited manner and her communications skills would meet employer expectations in work setting that require basic English skills as an essential job function

36The respondent’s denial of the applicant’s entitlement to the income replacement benefit was based on both physical and psychiatric assessments. It was also based on a vocational assessment with a transferable skills analysis which listed alternate forms of employment that [the applicant] was capable of engaging in. I found this evidence to be compelling and gave it more weight than the applicant’s evidence and testimony because it was based on assessment tools to assess her knowledge, skills, and interests and identified jobs she is able to perform based on education, training and experience.

37The Schedule directs that an individual’s education, training and experience be considered when determining whether they are reasonably suited for particular employment. The applicant’s education includes completion of grade 8 in Eritrea and grade 3 ESL level in Canada. There was evidence before that the applicant worked in Eritrea as a hairdresser and cut peoples hair in Canada. She herself stated in her testimony that “I have that skill.” Prior to the accident, she wanted to open her own hair salon. In Canada, she had several jobs including cleaning at a bus terminal, working in a factory making car seats, working with seniors as essentially a support worker doing such tasks as cleaning, housekeeping, laundry, dishwashing, food service/waiter. Therefore, it is evident that the applicant has many marketable skills and work experience.

38I accepted Dr. Heitzner and Dr. Patel’s opinion that the applicant could work as a beauty salon attendant greeting clients, answering phone calls, making appointments or cashier within a smaller business type setting. Out of all of the proposed jobs, in my view, this position would be the most suitable or best job for her. This job was in line with her own personal and professional interests, did not require extensive cognitive tasking and would work well with her ability to interpersonally relate to people and such a position would also be a low stress role for her. I noted that the applicant was 25 years old at the time of the accident and 34 at the time of the hearing and is still relatively young and physically able. In my view, even if the applicant has difficulty standing for extended periods, a beauty salon attendant does not have to stand for hours and could sit to conduct their tasks. The applicant admitted at the hearing that when she travelled to Eritrea on two occasions in 2015 and as recently as January 2018 she was able to sit on the plane for 12-15 hours.¹⁴

39In note that the applicant does have a home computer and internet access which shows, at the minimum, that she does have basic computer skills. She acknowledged in cross examination that the physiotherapy and massage did help her albeit temporary although it has been over two years since she last went and her counsel conceded that she has not applied for any treatment from the respondent for two and half years.¹⁵ She acknowledged that she is not currently being treated for any psychological or emotional disorders.¹⁶

40In summary, what has changed since 2013, is that the applicant has resumed driving and received counselling for her driving phobia, completed psychological counselling, she apparently was well enough to return to school, she has taken 3 long trips overseas demonstrating ability to sit for a long periods (one as recent as 2018), she was married recently and is searching for a home with her new husband, she is able to clean up after herself, she is able to go for two hour walks, she can spend a whole day at the mall and goes shopping, she meets with friends, and goes to church, He physical injuries have healed (save for the sensory deficits in her two fingers in her right hand). In other words, a lot has changed since Dr. Kiraly’s assessment in 2013.

41The respondent provided a surveillance report dated April 25, 2018, and video conducted over six days, which demonstrated the applicant driving, walking, boarding a bus and travelling, going to a mall, visiting friends, using a cell phone, ascending stairs, conversing with people, carrying a bag/placing a bag on roof of car. Although I did not place much weight on this evidence, I did note that the applicant was out of her residence and driving alone and her driving was a good indicator of her cognitive ability as this required planning routes, making quick decisions and problem solving.

42Based on all the reasons listed above, I find the applicant is not entitled to a post-104 IRB. I now move on to the second issue in dispute.

Entitlement to Medical Benefit – Chronic Pain Report of Dr. Friedlander

43$6,045.00 for a chronic pain assessment recommended by Humber River Medical Diagnostics in aOCF-18 submitted on September 26, 2016, and denied on January 3, 2017

44The applicant bears the onus of proving her entitlement to the payment for the chronic pain assessment in the amount of $6,045.00 on a balance of probabilities.¹⁷

45State Farm refused to pay for this expense on the basis that the expense was incurred before the insured person submitted a treatment plan as per s. 38(2) of the Schedule.¹⁸ It is evident that the applicant provided an invoice instead of submitting an OCF-18 to the respondent.

46Section 38(2) of the Schedule states that an insurer is not liable to pay for an assessment of examination which has been incurred prior to the submission of a treatment and assessment plan, by the insured. There are several exceptions to this rule, however, none of these are applicable in this case. The Schedule codifies specific obligations for both the insured and insurer. Both are bound by these obligations. As such, I have no discretion to waive this requirement.

47Due to the applicant’s non-compliance with s. 38(2) of the Schedule, the chronic pain assessment is not payable.

48I note that the applicant is not entitled to payment for the expenses of the cost of examination in dispute solely due to the non-compliance with s. 38(2) of the Schedule, and no finding has been made on the reasonableness and necessity of the cost of examination. I also note that this does not preclude the applicant from submitting a treatment plan for these services in the future.

Interest

49Since I found nothing payable, the applicant is not entitled to interest.

CONCLUSION

50For the reasons outlined above, I find the applicant is not entitled to any of the benefits in dispute or interest. The application is dismissed.

Released: March 13, 2019

___________________________

Cezary Paluch,

Adjudicator

Footnotes

1. 1November 21, 2018 hearing was held by teleconference.
2. 2O. Reg. 403/96
3. 3Explanation of Benefits OCF-9 dated May 10, 2016.
4. 4There is no dispute about the amount of the weekly IRB.
5. 5S. 5(2) of the Schedule.
6. 6Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479 para. 24.
7. 7Transcripts, November 21, 2018, page 99.
8. 8Determination of Continuing Entitlement to Specified Benefits
9. 9In 2010 Dr. A. Nashef, psychologist, diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Redaction, Chronic Pain Disorder, features of specific anxiety/fear –driving . In 2013 Dr. L. Kiraly, psychiatrist, diagnosed her with Major Depressive Disorder, Chronic Pain Associated Disorder. In 2015, Dr. Lotfalizadeh, psychologist, diagnosed her with Mixed Anxiety and Depressive Disorder and Chronic Intractable Pain. In April 2016, Dr. S. Patel, psychiatrist, diagnosed her with Somatic Symptom Disorder with Predominant Pain, Adjustment Disorder with depressed Mood, Specific Phobia (vehicular). In September 2016, Dr. M. Friedlander, pain specialist, diagnosed the applicant with chronic post traumatic headache (CPTH) and post-concussion syndrome, chronic post traumatic musculoskeletal and radicular neck pain, right shoulder blade muscle and soft tissue pain, low back pain, right wrist fracture with ongoing neuropathic pain, early onset osteoarthritis, somatic disorder with pain, past traumatic sleep disorder with pain, chronic pain syndrome, and psychological impairment.
10. 10Transcripts, November 1, 2018, page 106.
11. 11Transcripts, November 2, 2018, page 113.
12. 12Transcripts, November 1, 2018, page 100.
13. 13Transcripts, November 1, 2018, page 108.
14. 14Transcripts, November 1, 2018, page 95.
15. 15Transcripts, November 1, 2018, page 127-128 and 131.
16. 16Transcripts, November 1, 2018, page 135.
17. 17Scarlett v. Belair Ins. Co., 2015 ONSC 3635 (Div. Ct.) at paras. 20-24.
18. 18Explanation of Benefits (OCF-9) dated January 3, 2017.