June 28, 2008, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator - Edward Lee
Yousaf Safi was injured in a motor vehicle accident on November 6, 2002. He applied for and received statutory accident benefits (SABs). The main issue to be determined was whether Mr. Safi suffered chronic pain or fibromyalgia and depression or other psychological problems as a result of the car accident, and whether these impairments entitled him to the accident benefits claimed.
Sovereign´s attack on Mr. Safi´s case was three-pronged. The first argument was that Mr. Safi was not credible in the presentation of his pain symptoms and the psychological problems he experienced after the accident. Therefore, he was not as disabled as he claimed, and he was not entitled to the benefits sought. The second argument was that even if Mr. Safi was credible in his presentation, his chronic pain, fibromyalgia, depression, and other psychological conditions were not causally linked to the motor vehicle accident. Finally, Sovereign argued that even if the accident had been the cause of these conditions, he was not disabled to the extent that he was eligible for the benefits sought.
Mr. Safi testified that he was in a motor vehicle accident on November 6, 2002 as he was driving home from work. After the accident he visited his family doctor and complained of neck, shoulder, lower back and lower body pain. He received treatment for his physical injuries in the form of physiotherapy, massage, and chiropractics for approximately three to four months. He also began receiving psychotherapy treatment shortly afterward and continued to receive psychotherapy at the time of the arbitration.
Prior to Mr. Safi´s accident he was employed on a full-time basis as a shipper, handler, truck driver and deliveryman; he worked between 40 and 55 hours per week. His work involved lifting, moving and carrying boxes of car parts and cans of paint from the warehouse area to a delivery van. He lifted product as heavy as thirty pounds in the form of five-gallon paint cans, moving them 20 to 30 meters.
At the time of the hearing, Mr. Safi´s pain was his major complaint. He suffered from intense headaches two or three times a week. Also, he had painful neck aches that occurred as often as two to four times a week. He had pain (up and down) in his right shoulder and in his right hand (two to four times a week). He also had low back pain (two to three times a week), and pain and numbness in his left leg, and numbness in his upper left body. He was taking medication for all of this pain.
Mr. Safi also suffered from psychological and emotional problems following the accident. He claimed that he had depression, was irritable towards his wife and children, was unable to concentrate, and had memory problems. He no longer had the patience to read, felt sad, had suffered a decrease in libido, had insomnia, and some fear of driving.
At the time of the hearing, he was able to walk for a maximum of 20 to 30 minutes when he felt well, and he could stand for no more than 20 minutes. He could lift eight to ten pounds at the most, and could drive for a half hour to 50 minutes.
Before the motor vehicle accident Mr. Safi had no shoulder pain, no leg numbness, and only had a short spell of low back pain in 1995 but had since been resolved. Mr. Safi had attempted to work as a delivery and cash register person on an unpaid basis at a Mr. Sub, but he stopped working after several months because he was unable to concentrate, felt fatigue and pain, and could not remember where to make deliveries.
Prior to the car accident, Mr. Safi and wife shared housekeeping duties, he did 60% and his wife handled 40%. He cleaned windows, did laundry, and made necessary repairs to the house, including work on the walls and the sink. He had moved the fridge, the stove, and the washing machine. At the time of the hearing he was not doing any housekeeping tasks.
Also prior to the car accident, Mr. Safi was much more active. He saw his friends, read, studied, went out and played volleyball. At the time of the hearing, he was no longer engaged in any of those activities.
Mr. Safi´s wife testified that since the accident he did nothing, and his brother had to help her with laundry, shopping, taking care of the children, and fixing things in the home. She also stated that she noticed a change in her husband since the accident. He got upset, spent a lot of time in his room, and no longer talked with the children. He talked little, did not sit, go out with friends, and had trouble sleeping.
Dr. Kachooie, a physiatrist, testified at the hearing that over four years since the accident, Mr. Safi had Chronic Pain Syndrome and had plateaued in his recovery. Mr. Safi had become ever more reliant on medication. Dr. Kachooie´s experience was that 90% to 95% of motor vehicle accident victims with soft tissue damage injuries heal within 7-12 weeks, but 5% do not. In his opinion, Mr. Safi fell in the 5%. His prognosis was guarded to poor. In his November 2006 report he concluded that the motor vehicle accident was the primary causative factor to Mr. Safi´s level of persistent pain and functional limitation, disability. Mr. Safi was not able to perform any gainful occupational activities, and he required assistance for heavy and physically demanding aspects of housekeeping tasks.
Dr. Conn performed the insurer´s medical examinations. Dr. Conn concluded that there appeared to be a causal relationship between the accident related injuries and his initial complaints. Dr. Conn also found that there were numerous "inconsistencies" in Mr. Safi´s presentation. Dr. Conn´s opinion was that Mr. Safi´s pain responses were inconsistent, heightened or disproportional and not correlated or related to physiological reasons. This led him to conclude that Mr. Safi was not disabled as he said he was.
Dr. Debow, a psychiatrist, testified that he performed a psychiatric assessment on February 14, 2003. He concluded that there was no psychiatric impairment present as a direct result of the accident. Mr. Safi did not fulfill the diagnostic criteria for depressive episode, dysthymic disorder, adjustment disorder with mixed anxiety and depressed mood, panic attack, post traumatic stress disorder, or generalized anxiety disorder. The only diagnostic criterion Mr. Safi met was that of Pain Disorder in Association with Psychological Factors, although Dr. Debow was quick to point out that the psychological factors pre-existed the accident. Dr. Debow concluded that Mr. Safi had focused on the accident to avoid dealing with the pre-existing factors.
The insurer highlighted testimony and notes in the medical reports where Mr. Safi was described as having multiple or exaggerated pain responses, exhibiting voluntary inhibition of effort and inconsistencies, disproportionate symptoms, or displayed numerous non-organic findings and inconsistencies. The insurer´s argument was that the pain responses were faked, and thus Mr. Safi was not substantially disabled from performing the essential tasks of his pre-accident employment, or any employment.
Mr. Safi´s witnesses accepted that his pain responses were credible, supported by objective medical evidence in the form of an ultrasound, CT scan and MRIs, and led them to the conclusion that he suffered from fibromyalgia or chronic pain syndrome or both and depression.
The arbitrator´s overall assessment of the testimony of Mr. Safi and his wife was that they were both credible as witnesses. The arbitrator did not discern any obvious contradictions or inconsistencies in their testimony. He found the wife´s testimony particularly believable and somewhat poignant, given her frank and obvious disappointment in regard to Mr. Safi´s present condition, recovery, abilities, and functional capacity at home and in the workplace.
The arbitrator did not find that Mr. Safi´s decision to use a cane detracted from his credibility in any substantial manner. He agreed that at some point post accident, Mr. Safi became pain focused and that very well might have led him to use a cane, but this did not lead him to conclude that he was falsifying all his complaints.
On numerous occasions the Insurer sought to hammer home that modified work was available at Mr. Safi´s pervious place of employment had he returned, but no representative of the company appeared before the arbitrator to testify in regard to this "light duties job." In fact, none of the witnesses, including Mr. Safi´s doctors, knew what these modified duties were or could have been.
The arbitrator did not draw any adverse inference from the fact that Mr. Safi did not attempt a return to work.
Mr. Safi worked on a volunteer trial basis for several months at a Mr. Sub franchise. The franchise owner testified that Mr. Safi would often get lost while searching for the addresses where he was to make his deliveries, leading to customer complaints and cancellations of orders. Mr. Safi was unable to deal with numbers, money, and to make change at the cash register. Mr. Safi could not be trusted to make sandwiches which required him to operate a cutting machine. The franchise owner´s testimony was found to be frank and convincing.
The arbitrator noted that the courts and FSCO arbitrators have recognized chronic pain syndrome, fibromyalgia, and other related medical conditions as significant medical impairments. But it is also noted that pain is a subjective experience, which may be incapable of objective measurement.
The ultrasound report of Mr. Safi´s shoulders found some thickening of the rotator cuff on the right side which indicated evidence of tendonitis. The CT of his Lumbosacral spine found mild spinal stenosis and a possible left S1 root compression. An MRI found small central disc herniation at C5-6 which was fairly broad based and extended bilaterally. The MRI also found a small disc prolapse.
Dr. Kachooie linked these pre-existing problems with Mr. Safi´s current medical problems. Dr. Kachooie noted that Mr. Safi was asymptomatic before the accident. He stated that a typical patient with the conditions found in the ultrasound, CT scan and MRIs would likely not have symptoms until he was in his late 50´s or early 60´s. Dr. Kachooie attributed Mr. Safi´s problems to the car accident, which affected the nerve through the spine, tightened and led to foramen stenosis on both sides, and led to nerve compression and to leg numbness. The evidence was that once it became symptomatic, a stenosis became "relentless," in that the condition did not resolve completely, even after surgery. Rather, it contributed to a perpetual chronic pain state. He also noted that those with anxiety and depression could have an enhanced pain level, and pain perception could be influenced by this psychological state.
Dr. Conn´s focus was on the musculoskeletal component of any medical presentation, and the arbitrator noted that by his own admission, he did not treat chronic pain or test for fibromyalgia. He did not accept that pain itself could be a disability or impairment. He did admit that a car accident could cause an aggravation of such pre-existing symptoms.
Dr. Ogilvie-Harris, Mr. Safi´s witness and orthopedic surgeon, concluded that Mr. Safi sustained soft tissue injuries to the cervical and lumbar spine, and minor tearing or disruption of ligaments. Mr. Safi had pre-existing degenerative changes which, when further damaged, sustained a greater degree of damage. Dr. Ogilvie-Harris observed an adverse psychological or emotional response to injury which led to a poor prognosis for recovery. He diagnosed Chronic Pain Syndrome.
The arbitrator found that Mr. Safi was credible in regard to his pain complaints, and that he developed chronic pain syndrome and fibromyalgia following the motor vehicle accident. He noted that arbitrators have unanimously determined that the motor vehicle accident need only be one direct cause of the impairment. Put another way, the motor vehicle accident needs only to have been a material or significant contributing factor in the cause of disability. Therefore, Mr. Safi did not have symptoms of pain disorder, and was happy, married, and leading a productive, stable life, before the motor vehicle accident. Mr. Safi´s pain and was `triggered´ by the physical injuries sustained in the accident rather than the past. Mr. Safi´s psychological issues were also triggered by the accident.
The weight of the psychological opinions and evidence presented led the arbitrator to conclude that the motor vehicle accident was a material or significant contributing factor in causing Mr. Safi´s depression, ongoing pain disorders, fibromyalgia, and chronic pain syndrome. He accepted Dr. Kachooie´s analysis that the motor vehicle accident was a primary causative factor for his current level of persistent pain, functional limitation, and disability. Mr. Safi´s pre-existing conditions, as shown in the CT scan and the MRIs, were aggravated by the motor vehicle accident. The arbitrator also found that Mr. Safi was psychologically substantially disabled from performing the essential tasks of any employment for which he might be reasonably qualified. And lastly, the arbitrator found that Mr. Safi had suffered a substantial inability to perform the essential tasks of his job, and had suffered from a complete inability to engage in any employment for which he was reasonably suited by education, training or experience.