July 18, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant v Royal Sun LAT 16-000068
Date of Decision: June 30, 2017
Heard Before: Adjudicator Susan Sapin
Entitlement to income benefits: Arbitrator rejects insurers expert opinion as incomplete and incorrect; Arbitrator finds applicant credible and forthright;
The applicant, a 33-year-old self-employed tow truck driver was injured in a car accident around midnight on April 26, 2015 when his tow truck was rear-ended at an intersection as he waited for a green light. The impact was such that the tow truck, a 13,000-pound vehicle, was pushed into the intersection. The car that hit it crashed into a traffic light and knocked the pole over, then flipped upside down. Police and ambulance were called to the scene. Both vehicles were undriveable and had to be towed away. Ambulance attendants noted the applicant’s complaint of back pain with numbness and tingling down the back of his right leg and advised him to go to the hospital. He chose instead to wait for a colleague to tow his truck, and went to see his family doctor the next day. The applicant sustained whiplash injuries and has been unable to return to his job due to ongoing debilitating pain in his back, hip, groin and right leg, and regular pain in his neck shooting down his right arm, as well as headaches. He had to repair his tow truck and eventually had to sell it at a loss because he could not keep up the lease payments. He went into debt, and when his injuries failed to heal even after treatment, he developed anxiety, depression and suicidal thoughts.
The applicant applied for and received statutory accident benefits, including IRBs from Royal Sun under the SABs. RSA terminated IRBs after eight months, on December 15, 2015. The applicant disputes RSA’s termination.
- Is the applicant entitled to an income replacement benefit (IRB) under s. 5(1)2 of the Schedule on the basis that he is substantially unable to complete the essential tasks of his pre-accident employment?
- The applicant is entitled to an IRB from December 15, 2015 and ongoing as he is unable to return to his pre-accident employment as a tow truck operator.
To be entitled to an IRB the applicant must establish on a balance of probabilities that, because of the accident, he suffered an impairment that renders him substantially unable to complete the essential tasks of his employment as a tow truck operator. The applicant submits that he developed sciatica in his right leg and pain radiating from his neck into his right shoulder and arm because of the accident. These injuries have been verified by his treating practitioners through objective testing and EMG studies, which RSA does accept. These injuries, as well as severe ongoing pain and headaches, render him unable to return to work as a tow truck driver.
RSA maintains that MRIs of the applicant’s neck and back indicate there is no cervical or lumbar nerve root impingement and, even if there is, the applicant’s symptoms are caused by pre-existing degenerative disk disease of the neck and back, not the accident. Furthermore, the applicant’s physical and psychological symptoms became much worse after he received nerve block injections from a negligent pain specialist, and so, RSA maintains, his ongoing symptoms cannot be attributed to the accident. Finally, RSA submits that the applicant’s symptoms pre-date the accident, and that inconsistencies in his recollection of some events undermine his credibility.
The Arbitrator reviewed all the evidence and heard the testimony of the applicant, and found that the evidence supports that but for the accident, the applicant would have been able to continue in his chosen career. The Arbitrator found the applicant to be entirely credible, his subjective complaints have been consistent from the outset and are supported by the evidence of his treating practitioners, and his accident injuries prevent him from returning to work as tow truck driver. The Arbitrator found RSA’s position to be untenable. Finding RSA’s evidence, especially that of its key insurer examiner, Dr. RL to be deficient in significant aspects as set out below.
Essential duties included a “huge” amount of deep bending and lifting very heavy loads (high and low) often in rapid succession, and lots of kneeling/squatting and very vigorous activity hooking up vehicles and equipment and changing heavy wheels and tires (often while kneeling and while jacking with the other arm). The applicant testified that an inflated wheel/tire on a common Ford Pl 50 truck weighs over 100 pounds. He was required to climb under vehicles and pull out debris, heavy rocks, and to pull on body components to move vehicles. He used dollies weighing 50 to 70 pounds, and he would regularly push whole vehicles (alone) to roll them and change their position. In winter months, he has had to shovel snow vigorously. This work was interspersed with long periods of sitting, often on highway on-ramps, where it was too dangerous to get out and stretch or walk around.
There is no evidence to contradict the applicant’s assertion that he was perfectly capable of engaging in all of the heavy duties of a tow truck operator for the six years he spent in that job before the accident, or that he has been anything but a hard worker since he graduated from high school. He studied auto body repair at Centennial College and completed a 7800-hour apprenticeship while working part time at the Home Depot, where he received an award for customer service. He then worked there full time while learning to be a tow truck driver. He worked for four years from 2009 to 2013 for a towing company contracted to CAA, his first job in the industry. The president of the company wrote him a reference stating that the applicant “distinguished himself by consistently achieving high customer satisfaction scores, excellent attendance, and above average revenue generation.” The applicant then worked for two more CAA contractors before purchasing his own tow truck in April 2015 and getting his own CAA contract. He preferred to work under contract to CAA because it was a reputable company. His plan was to continue working himself because he enjoyed the work, and eventually hire other drivers.
The Arbitrator found RSA’s attempts to challenge the applicant’s credibility regarding his pre-accident health and the cause of his injuries to be unconvincing. RSA questioned a visit to the applicant’s family doctor in June of 2011 for x-rays of his neck and back. The applicant explained he had a stiff neck and back from sitting and just wanted to make sure everything was okay. Considering the nature of his job, the Arbitrator found this reasonable and accept the applicant’s explanation. The Arbitrator accepted the applicant’s testimony that a shoulder injury and minor neck stiffness from a motor vehicle accident in 2008, and a work injury at Home Depot resolved after physiotherapy. The OHIP summary for the three years before the accident indicates the applicant did not seek investigations or treatment for musculoskeletal issues despite his full time physically demanding work.
RSA also challenged the applicant’s recollection of the events of the night of the accident, claiming his testimony differed from the ambulance call report in two respects. The first discrepancy arises from the statement in the report that “pt. has co-worker on scene to tow his truck away…Pt. left on scene with co-worker and police,” whereas the applicant’s evidence is that he was waiting specifically for a CAA tow truck to tow his vehicle, because he did not trust anyone else to do it in case the expensive equipment on his truck would “disappear.” There was another tow truck at the scene preparing to tow the other vehicle and the Arbitrator found it likely that is what the ambulance call report refers to. The Arbitrator accepted the applicant’s explanation as more reliable than the hearsay report of ambulance attendants who I find would have been more concerned about the applicant’s refusal to go to the hospital with them than with the details of who was going to tow his truck. The Arbitrator did not accept RSA’s submission that this example undermines the reliability of the applicant’s evidence.
RSA alleges a second discrepancy between the ambulance call report and the applicant’s evidence in that the report states the applicant had numbness and tingling from the right buttock area down the back of his right leg, but that he denied neck or back pain and could move all four limbs freely and there were “no other injuries.” The Arbitrator reviewed all the evidence and disagreed that this undermines either the applicant’s credibility or causation. The discrepancies raised by RSA regarding the ambulance call report are of no significance. They neither undermine the reliability of the applicant’s evidence nor do they support RSA’s theory that the accident did not cause his impairments.
The ambulance call report is a crucial document in this case because it confirms that the applicant complained of pain in his lower back with symptoms radiating from his buttock down his right leg immediately after the accident. It confirms that the ambulance attendants thought the complaint serious enough that the applicant should go to the hospital with them, and that they told him so. It undermines the opinion of the first IE physician who made no reference to these symptoms in his first IE report December 9, 2015. Later IE reports stated that the applicant never complained to him of these symptoms the first and only time he examined him, and did not change his opinion when evidence of right leg pain was submitted to him.
The medical evidence was consistent. The MRI results show nothing unusual but the Arbitrator did not find these MRI results determinative in any event. The Arbitrator preferred the medical opinion that the accident played a significant role in, and was a primary cause of, the applicant’s impairment because it does not rely only on the results of the MRIs, but because it draws on a broader base of information, such as careful history-taking, observation of the applicant over time, and a variety of clinical tests repeated over time with consistent results.
RSA urged the Arbitrator find that nerve blocks administered to the applicant were unsuccessful and worsened his pain and depression. RSA submits that this, and not the accident, is responsible for the applicant’s ongoing pain and depression. The second ground is that treating physician’s licence was restricted in 2001 by the College of Physicians and Surgeons and his practice required supervision for 9 months in 2015, suggesting his opinion is unsound.
The Arbitrator dismissed these arguments. That the nerve block injections were unsuccessful does not alter the fact, and my finding, that the accident injuries aggravated the applicant’s underlying disk disease which was asymptomatic before the accident. There is no evidence the injections caused lasting physical damage or impairment. They were not intended as a cure. It is understandable that the applicant’s depression worsened after the injections, based on his evidence about his profound disappointment when they did not help relieve his pain, his fear that his pain might be permanent, and his worry about the future.
The Arbitrator rejected RSA’s submission that pre-existing psychological stressors explain the post-accident Adjustment Disorder with Anxiety and Depressed Mood diagnosed by both its psychological assessor, Dr. AC, in December 2015, and the applicant’s treating psychologist, Dr. LL, as of July, 2016.
The Arbitrator concluded based on the evidence that the applicant’s account of his loss of confidence and self-esteem and his worry that he will be unable to marry or support a family in the future because of physical injuries sustained in the accident that abruptly ended a career he enjoyed and made a success of far more compelling. His psychological condition is made worse by pain that has become chronic
The Arbitrator found on a preponderance of the evidence that the applicant meets the substantial inability test under s. 5 of the Schedule and is entitled to IRBs from December 19, 2015 and ongoing, as well as interest on overdue benefits in accordance with the Schedule.