December 18, 2009, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Decision Date: May 28, 2009
Diane Brazier was injured in a motor vehicle accident on September 15, 2005. She applied for and received statutory accident benefits from RBC General Insurance. RBC terminated weekly income replacement benefits on April 3, 2006. The parties were unable to resolve their disputes through mediation, and Ms. Brazier applied for arbitration.
The issue in the hearing was to determine if Ms. Brazier was entitled to receive income replacement benefits from April 4, 2006 to September 15, 2007, at the rate of $385.56 per week, with interest, on the basis that she suffered a substantial inability to perform the essential tasks of her pre-accident employment. The hearing was also to determine if Ms. Brazier was entitled to receive income replacement benefits from September 16, 2007 to the date of the hearing and ongoing, at the rate of $385.56 per week, with interest, on the basis that she suffered and continued to suffer from a complete inability to engage in any employment for which she was reasonably suited by education, training or experience.
Ms. Brazier was struck by a vehicle on September 15, 2005 while walking on the green light. She did not remember anything from when she was hit to when she was on the ground. She was apparently hit by a Jeep and rolled onto the hood of the vehicle before hitting the ground. Ms. Brazier hit her head and suffered a contusion and possible concussion, but no loss of consciousness. She also sustained contusions and bruising to her right lower extremity, as well as a lumbosacral concussion and strain. No acute fracture or dislocation was noted.
Ms. Brazier had been employed since June 2000. Ms. Brazier worked as a receptionist in the front office, but a significant portion of her duties had also come to include assisting with shipping and receiving in the back warehouse. Other than a brief and unsuccessful attempt to return to work, Ms. Brazier did not worked following the accident.
Ms. Brazier was 35 years of age and the mother of three children aged 12, 10 and 7 years old when the accident occurred. Ms. Brazier gave birth to her youngest child in October 2006, a little over one year post-accident. Ms. Brazier was a single mother.
Ms. Brazier maintained that she suffered from chronic pain and impairments related to her right lower extremity that not only prevented her from returning to her employment at Daton, but continued to prevent her from engaging in any employment for which she was reasonably suited by education, training or experience. The medical evidence proffered by Ms. Brazier focused largely on her psychological impairments and the non-organic nature of her disability. The psychological impairments included depression, anxiety and post-traumatic stress.
RBC questioned the veracity of Ms. Brazier's complaints and relied largely on an orthopaedic assessment by Dr. R.Z. in support of its position that Ms. Brazier was not only able to return to suitable employment but, in fact, able to return to the job tasks of her pre-accident position at Daton. To the extent that Ms. Brazier suffered from psychological impairments that prevented her from working, RBC attributed those impairments to Ms. Brazier's unfortunate pre-accident personal history.
Pre-accident personal history, stressors and level of functioning
In terms of pre-accident stressors, Ms. Brazier related that her mother used to "beat [her] with anything she could get her hands on." However, Ms. Brazier indicated that she had "put it behind her" when she moved out of her parents' house at 18, adding that she was determined to "make it." Ms. Brazier indicated her belief that she did not need counseling on this issue. Ms. Brazier also related that her first boyfriend, the father of her 3 sons, was "abusive and controlling." He was in jail for murder. She left him when he tried to kill her by stabbing her. She also related that he used to beat her unconscious. Ms. Brazier had been living in Guyana for 2 years when she left him. She returned to Canada "with the clothes on her back" and again expressed her determination to rise above her circumstances. In her testimony, Ms. Brazier stated "my past is my past… I don't live with what my mother did to me… same with the boys' father… I don't let those things weigh me down…. Those past incidents strengthened me."
Ms. Brazier testified that she had been very active prior to the accident. In addition to her full-time job, Ms. Brazier also made her children's lunches, prepared all the dinners and did cleaning and laundry. She also took part in many activities involving her children.
Ms. A.J., friend of Ms. Brazier and sister of Ms. Brazier's boyfriend, Mr. R.J., also testified. Ms. A.J. described Ms. Brazier as very active pre-accident; she described her as busy with both work and her children.
While Ms. Brazier may have been active, pre-accident records of the family doctor, Dr. B., noted that Ms. Brazier suffered from difficulties coping with work and home stressors. A clinical note from June 11, 2004 stated, for example, that she was very stressed out, felt tired, snapped easily at her kids, suffered from crying spells and an adjustment disorder. Counseling was provided.
It seemed clear that Ms. Brazier had pre-accident stressors with which she was having difficulty coping. Life was not easy for Ms. Brazier before the subject accident. The pre-accident records suggested that in the year before the accident, she was anxious, depressed, irritable and having difficulty adjusting to life stressors. However, the psychological difficulties pre-accident appeared to have been episodic in nature and did not interfere with Ms. Brazier's ability to maintain an active lifestyle including her full-time job and taking care of her children.
Pre-accident education and employment
Ms. Brazier completed grade 13 and attended college in a nursing program. However, Ms. Brazier did not complete the program as a result of having her first child.
Regarding her work history, Ms. Brazier got a job at the CNE when she was 14 where she did a variety of odd jobs. Sometime after her first son was born, she began working at the Rogers Centre where she was a cashier and later ran concession stands. She then had her second son and was home most of the time. After her third son was born, she took an accounting course.
Ms. Brazier began working at Daton in June 2000 as a receptionist. She later took on the further responsibilities of shipping and receiving.
D.Q., the president of Daton, gave evidence at the hearing. He described Ms. Brazier as an A+ employee. He had no concerns with her work performance. She had an excellent attendance record and he recalled that she took her kids to work, if needed, rather than missing work.
Ms. Brazier's evidence re: post-accident functioning and return to work attempt
Ms. Brazier testified that the accident completely changed her life.
Ms. Brazier maintained that she had to live on the main floor of her house for 8 months following the accident, due in large part to pain and instability she felt when using the stairs.
Her parents and her sister would come over on weekends to clean and do laundry. Her 10 and 12 year old sons helped with her 8 year old son.
Dr. B., the family doctor, prescribed Oxycocet which Ms. Brazier took in the weeks immediately following the accident, but as she noted in her statement, when she would take the medication at night, it knocked her out and this made her worry about what could happen to the kids if there was an emergency at night after she took the medication. As a result, Ms. Brazier avoided taking Oxycocet and relied primarily on over-the-counter Advil for pain relief, which she took on a daily basis.
Ms. Brazier continued to complain of constant pain in her right leg, right knee, right ankle, right hip and low back. Ms. Brazier also claimed that she only would get 3 hours sleep per night. She experienced headaches daily, sometimes all day long.
It was Ms. Brazier's evidence that, while she was able to do housework, it took her much longer to complete her tasks and increased her pain.
Ms. A.J. testified that she visited Ms. Brazier on an almost daily basis and assisted her with housekeeping and childcare. She further testified that Ms. Brazier attempted to complete her own housework, but struggled with pain and took the whole day to get it done.
With respect to employment, Ms. Brazier testified that she would be willing to retrain, and believed that she could do anything that she set her mind to, but did not feel she could do anything at this point, given her constant pain.
Ms. Brazier made an attempt to return to work. But the attempt was restricted to her receptionist duties that were less arduous than her duties as a shipper/receiver. Still, she was not able to perform the reception duties.
When asked what prevented her from working now, Ms. Brazier testified that it was her constant pain.
Emotionally, Ms. Brazier reported that she was depressed and worried a great deal about her future and her ability to care for her children.
Ms. Brazier felt that her life had fallen apart and she blamed the accident.
Post-accident medical evidence and RBC's claims handling
Ms. Brazier was taken by ambulance to William Osler Health Centre where x-rays were taken of her right femur, right hip and pelvis. Four days later, Ms. Brazier returned due to severe pain. Dr. B. prescribed Oxycocet and referred Ms. Brazier to Life Mark for physiotherapy.
A delay of approximately one month took place between the accident and the filing of an Application for Accident Benefits. Treatment at Life Mark was also delayed as a result.
An initial Disability Certificate dated October 30, 2005 identified Ms. Brazier's primary injuries and sequelae as being hip and knee contusion, concussion syndrome, lumbosacral concussion and lumbosacral strain.
Ms. Brazier attended Life Mark from or about October 20, 2005 to March 14, 2006. Ms. Brazier testified that she did not notice much improvement at first. Any relief was temporary and would come back when she had to climb up and down stairs. Eventually, some improvement was noted, as the pain was reduced from 10 out of 10 after the accident to 7 or 8 out of 10 with treatment. Ms. Brazier noted that her pain and burning, however, was always there, referring to her right lower extremity.
RBC referred Ms. Brazier to a multidisciplinary assessment by Dr. R.Z., orthopaedic surgeon, and S.S., occupational therapist.
A functional capacity evaluation was conducted and demonstrated impairments were noted with respect to standing and walking tolerances, as well as kneeling, crouching, and stooping. Ms. Brazier was also noted to use awkward alternate movement patterns in order to minimize placing weight through her right lower extremity.
Medically, from an orthopaedic perspective, Dr. R.Z. found that Ms. Brazier suffered a contusion to her right knee and a strain or contusion to her right ankle. Especially with respect to the right knee, Dr. R.Z. found that Ms. Brazier was impaired from being able to engage in continuous standing, walking, bending and squatting. He did not have a job site analysis to review, but based on the functional capacity evaluation and Ms. Brazier's self-report of her job tasks, Dr. R.Z. found Ms. Brazier to be substantially unable to perform the essential tasks of her employment. However, Ms. Brazier was found to be able to perform her housekeeping duties.
A physical demands analysis conducted at the work site was subsequently provided to Dr. R.Z. who, in an addendum report dated January 16, 2006, confirmed that while Ms. Brazier could resume her receptionist duties, she could not perform the essential tasks of her shipping and receiving job.
Ms. Brazier became pregnant with her youngest child. As a result, the MRI recommended by Dr. R.Z. could not be performed and had to be deferred until after the pregnancy.
Although Dr. R.Z. found Ms. Brazier to be unable to return to work, Ms. Brazier wrote a letter complaining of Dr. R.Z. and the manner in which he conducted his assessment. In particular, Ms. Brazier focused on what she perceived as Dr. R.Z.'s failure to listen. The letter provided: “His assessment of me I thought was hurtful. He didn't listen to anything I said and before I was even finished answering one question he would cut me off and go on to something else. When I walked into this assessment I was in pain, unable to walk to, he didn't give a damn because he was doing his job. When he began the assessment he asked me a question before I had even finished, so to me he only wanted his questions answered with one word. He finished what he had to do, told me to get dressed and said when I was ready I could leave. So I went downstairs sat there and called a cab and started crying.”
Ms. Brazier's letter again demonstrated her emotional state and the obvious frustration arising from her belief that she was not being heard, even though the report supported her entitlement to ongoing IRBs.
Dr. R.Z. saw Ms. Brazier again on March 20, 2006 for a follow-up assessment. He found that the examination failed to reveal any evidence of a current disability that would cause Ms. Brazier to suffer a substantial inability to perform the essential tasks of her employment as a receptionist. Dr. R.Z. did note that Ms. Brazier had not reached maximum medical recovery and continued to have some residual discomfort in her knee, but he expected that it would continue to improve.
Dr. R.Z. stated that his report recorded what Ms. Brazier had told him, but admitted that he may have cut off Ms. Brazier while answering questions. Dr. R.Z. also testified that his focus during the examination was on the physical examination. Subjective complaints needed to co-relate with physical findings. From his perspective as an orthopaedic specialist, if the physical examination showed no abnormalities, then she could complain about what she wanted. In any event, Dr. R.Z. maintained that, in terms of subjective complaints, Ms. Brazier had told him that she was 80% better, could manage her care giving, housekeeping and self-care tasks, and also that she had found therapy to be extremely helpful.
On cross-examination, Dr. R.Z. admitted that he was not qualified to comment on whether Ms. Brazier might have been suffering from a somatoform disorder and admitted he did not examine Ms. Brazier with a view to a possible chronic pain condition. Dr. R.Z. indicated that he would not investigate the possibility of chronic pain until closer to one year post-accident. Dr. R.Z. agreed that ongoing pain complaints beyond one year could suggest chronic pain. He also agreed that chronic pain could be primarily a psychological condition and further agreed that he was not qualified to provide an opinion on a chronic pain diagnosis from a psychological perspective.
On the basis of Dr. R.Z.'s second assessment, Ms. Brazier's IRBs were terminated.
The Life Mark file did not contain a discharge report, but the progress notes suggested that Ms. Brazier showed improvement over her course of treatment. Still, progress notes as late as March 7, 2006 continued to reference a burning pain in her right knee. There was also reference to stiffness and gait improvements. Ms. Brazier testified that she felt her condition had worsened since she stopped going to Life Mark. It was Ms. Brazier's understanding that treatment ended when it did because RBC would not fund any further treatment, although there did not appear to be any denied treatment plans at or about this time period.
Ms. Brazier was referred by her family doctor to Dr. M.C., orthopaedic surgeon. In his report of May 23, 2006, Dr. M.C. noted that her complaints at that time (2 months after physiotherapy was discontinued and 8 months post-accident) included right knee pain in the superior patella with radiation to the ankle anteriorly, as well as joint pain.
Ms. Brazier was also referred to Dr. K.P. In her report of June 9, 2006, Dr. K.P. noted low back pain radiating to the right lower extremity, right knee pain and right ankle pain. Ms. Brazier was noted to complain of sharp pain, stiffness, stabbing, numbness, throbbing, tingling and burning resulting in back pain, weakness, swelling, and difficulty walking in the right lower extremity. The symptoms were identified as being exacerbated by walking, standing and negotiating stairs. Ms. Brazier's gait was noted to be antalgic and her right leg internally rotated.
Dr. B. provided an updated Disability Certificate dated December 19, 2006 that essentially repeated the primary complaints and sequelae listed in his initial Disability Certificate: concussion syndrome; hip and knee contusion; lumbosacral strain.
The MRI of the right knee that was delayed due to the pregnancy was finally conducted on December 21, 2006. The MRI results were fairly unremarkable noting mild degenerative changes and mild collateral ligament strain. An addendum report from Dr. R.Z. dated January 24, 2007 confirmed that he had received and reviewed the MRI and the opinions contained in his orthopaedic reports of December 23, 2005 and March 29, 2006 remained unchanged.
Dr. M.P., psychologist, and Ms. B.H., registered nurse, conducted a psychological assessment of Ms. Brazier on December 20, 2006.
The test results indicated severe levels of depression and anxiety. Post-traumatic stress indicators also revealed a high level of anxiety and depressed mood, as well as defensive avoidance, both cognitive (i.e. pushing painful memories or thoughts of the accident out of her mind) and behavioural (i.e. avoidance of stimuli that remind her of the accident).
Ms. Brazier reported feeling severe impairment in her parental activity and in her personal relationships. She reported a severe level of impairment in her participation in her sports/hobbies, in her social activities, and in her employment.
Dr. M.P. and Ms. B.H. noted that Ms. Brazier's test results suggested she was suffering from some psychological and emotional difficulties prior to the accident but they were not as incapacitating as her present symptoms.
RBC admitted to receiving the Dr. M.P. report in or about March 2007 (apparently from Mr. R's office), but through inadvertence, the report was filed digitally in RBCs paperless system as an OCF-21 (because an OCF-21 invoice was the top document in the fax that was scanned into the system) with the result that the report did not get included in RBC's medical file for Ms. Brazier. Even the file delivered to RBC's counsel for this arbitration did not include the Dr. M.P. report. It was effectively buried. The report was, however, apparently paid for by RBC.
A further consequence of RBC's misfiling of the Dr. M.P. report was that the report did not get forwarded to any subsequent assessors who examined Ms. Brazier at RBC's request.
Although the reference to Ms. Brazier not being able to work as a result of her psychological impairments was somewhat buried in the body of the report, the reference was nevertheless clear. Ms. F. admitted that, in the ordinary course, a section 24 assessment suggesting a disability and entitlement to a benefit would be sent to a section 42 assessor for an opinion and, if agreed with, the benefit would be reinstated. Ms. F. a could provide no explanation as to why that did not happen in this case, other than the fact that the Dr. M.P. report had been misfiled.
Nearly a year after the Dr. M.P. report, Ms. Brazier was referred by her counsel for a further psychological assessment by Dr. G.Y., psychologist, in November 2007. On the basis of his initial assessment, Dr. G.Y. prepared a treatment plan dated November 27, 2007 recommending 15 sessions of mental health therapy.
As with Dr. M.P., whose report he did not have, Dr. R. found that Ms. Brazier's test results indicated severe levels of both anxiety and depression.
Notwithstanding the number and severity of psychological impairments suggested by the test scores, Dr. R. found that he was unable to make a valid and reliable psychological diagnosis due to the indicators suggesting symptom magnification and exaggeration and/or the indiscriminate endorsement of symptoms. Without a reliable diagnosis, Dr. R. concluded that there was a lack of psychological impairment and treatment was not required.
Dr. G.Y. and Dr. R. used many of the same tests to assess Ms. Brazier. Although Dr. G.Y. and Dr. R. drew different conclusions, the tests produced similar results indicating severe levels of anxiety, depression and posttraumatic stress disorder ("PTSD")
On the issue of malingering, Dr. G.Y. conceded that the modifying indices of two of three tests revealed that Ms. Brazier was over reporting her symptoms, indicating symptom exaggeration. However, Dr. G.Y. noted that while symptom exaggeration indicated conscious or unconscious malingering, this was not, in his opinion, the case here. Dr. G.Y. found instead that Ms. Brazier's symptom exaggeration was a cry for help. Dr. G.Y. noted that a malingering patient is often sullen, ill-at-ease, uncooperative, suspicious, resentful and blaming. Dr. G.Y. found no such presentation to him, although he noted that Ms. Brazier did harbour ill feelings toward the driver of the vehicle that hit her as well as certain insurance examiners.
Dr. G.Y. concluded that Ms. Brazier met the DSM IV criteria for chronic PTSD and chronic pain disorder.
Overall, Dr. G.Y. found Ms. Brazier's global functioning impaired at the moderate to serious level. Dr. G.Y. also prepared an Application for Determination of Catastrophic Impairment (OCF-19) dated March 17, 2008.
Ms. Brazier submitted that the psychiatric evaluation conducted by Dr. A.Z., psychiatrist, was helpful in understanding the nature and degree of her accident-related psychological impairments. RBC did not object to the admission into evidence of Dr. A.Z.'s report.
Dr. A.Z. concluded that Ms. Brazier experienced significant symptoms of depression and anxiety over the three years since her motor vehicle accident. She experienced chronic depression, anxiety and chronic pain.
Given the chronicity of her complaints (2½ years post-accident), and also given his review of the reports of Dr. M.P. and Dr. G.Y. and the psychological diagnoses contained therein, Dr. W. concluded that Ms. Brazier was unable to return to any occupation and would likely remain that way unless her psychological problems were addressed and she embarked on an aggressive exercise program to build her muscle strength and endurance to control her chronic pain.
Dr. B., the family doctor, testified at the hearing. It was his evidence that he had "missed the boat" in his efforts to diagnosis Ms. Brazier. He focused exclusively on a pathological or physical explanation for her complaints. He overlooked the persistence of her complaints and the absence of any clear organic pathology as signs that she might be suffering from chronic pain with a significant psychological component. When he read Dr. G.Y.'s report of March 18, 2008, it was something of a revelation to him and he had to wholeheartedly agree with Dr. G.Y.'s diagnoses.
ANALYSIS AND FINDINGS:
An applicant's credibility is often an important consideration when determining the nature and extent of disability and, consequently, entitlement to benefits. This is especially true where there is little or no evidence of underlying pathology that would adequately explain an applicant's complaints.
Throughout her evidence, Ms. Brazier's presentation alternated between despondency and anger. Ms. Brazier emphasized her independence and seemed particularly distraught that she had not been able to surmount the adversity of the accident the way she had been able to rise above some of the other challenges in her past. She cried intermittently. At times, her responses and behaviours appeared somewhat histrionic and prone to hyperbole, raising the question of whether Ms. Brazier was malingering or whether, as Dr. G.Y. opined, her exaggerated responses were themselves symptomatic of her psychological condition and represented a cry for help. The arbitrator was compelled by the evidence to agree with Dr. G.Y..
Dr. G.Y. arrived at his opinion on the basis of an extensive assessment of Ms. Brazier taken over several days. Dr. R. simply responded that he read Dr. G.Y.'s report with interest and repeated his conclusion that treatment was not reasonable and necessary because Ms. Brazier's responses were not reliable and prevented him from making a diagnosis. The arbitrator found Dr. R.'s response inadequate and unhelpful. Dr. R. effectively sidestepped the issue of whether exaggerated responses could have been a symptom of a psychological condition. The arbitrator accepted Dr. G.Y.'s opinion that exaggerated responses possibly represented a cry for help and such was the case with Ms. Brazier.
The arbitrator found that the evidence, when taken as a whole, supported the conclusion that Ms. Brazier's exaggerated responses were not evidence of malingering.
The arbitrator noted that RBC made much of the fact that Dr. B.'s clinical notes and records contained several entries that did not reference accident-related complaints. Further, those entries that did refer to the accident failed to mention complaints of headaches, sleeplessness and anxiety that appeared in other reports.
With respect to his note taking, Dr. B. testified that he had approximately 5,000 patients. He worked in a clinic setting and saw 3 or 4 patients per hour, as well as emergency patients. He worked 12 to 15 hours per day. Dr. B. stated that while he was required to take notes, they were not a record of all complaints but rather represented a biased report of chief complaints based on both the patient's complaints and his assessment. In short, Dr. B. noted what he found to be important. Chronic or ongoing complaints may not have been noted in every visit.
Ms. Brazier testified that she did not complain as often as she should have to Dr. B. about headaches, as she was already taking Advil and expected that there was not much else to be done. She also testified that headaches were not her primary complaint. She also testified that she did not tell Dr. B. about the extent of her sleep problems because she did not want to be taking sleeping pills since she cared for four children. This was consistent with the concerns noted earlier that Ms. Brazier had regarding her use of Oxycocet.
The arbitrator accepted that Dr. B.'s notes likely did not reflect the full extent of Ms. Brazier's complaints. Also, RBC underemphasized the several accident-related complaints that were noted in Dr. B.'s records and the fact that investigations into Ms. Brazier's ongoing complaints increasingly shifted from her family doctor to other specialists, such as Dr. M.C., Dr. K.P., Dr. M.P., Dr. W. and Dr. G.Y.
RBC also challenged the veracity of Ms. Brazier's complaints and her assertion that she could not return to work by referring to a note in Ms. Brazier's social assistance file dated August 2, 2007. The note stated that Ms. Brazier said that she was able to work but required assistance obtaining daycare for dependents. Ms. Brazier responded that she had told Social Services that she was willing to work, not that she was able to work. The arbitrator noted that the Social Services record also provided that Ms. Brazier stated that she could not stand on her feet for long periods of time.
While Ms. Brazier's evidence may have contained some inconsistencies, the arbitrator did not find them to be very significant, especially when viewed in light of the evidence as a whole. Ms. Brazier's evidence was largely internally consistent, as well as largely consistent with the evidence of both lay and medical witnesses.
While her affect was highly emotional and some of her responses exaggerated, the arbitrator did not find that her evidence was intended to mislead or was motivated by malingering.
The arbitrator found that Ms. Brazier was both unable to perform the essential tasks of her pre-accident employment at Daton and, at the time of the hearing, she was completely unable to engage in any occupation for which she was reasonably suited by education, training or experience.
The arbitrator found that Ms. Brazier continued to experience significant ongoing pain in the area of her right leg, right knee, right ankle, right foot, right hip and lower back as a result of the accident. She continued to suffer from frequent stress-related headaches and sleeplessness that were also sequelae of the accident. The arbitrator accepted the opinions of Dr. M.P., Dr. G.Y., Dr. B. and Dr. W. that Ms. Brazier suffered from chronic pain with a strong psychological component. In addition to her heightened pain perception, the accident had materially contributed to psychological disorders that included depression and anxiety.
Prior to the accident, Ms. Brazier was functioning quite well in her activities of daily living and work, although she was clearly a psychologically vulnerable person. Ms. Brazier's vulnerability left her exposed to a chronic pain disorder with significant psychological overlay.
The arbitrator also noted and found it significant that Ms. Brazier had risen above the issues in her past by working hard and proving that she could be self-sufficient and take care of her family. Even when Ms. Brazier's chronic pain with significant psychological overlay was finally diagnosed by Dr. M.P., some 15 months post-accident, Ms. Brazier continued to go untreated for her chronic pain and psychological disorders. The length of time that Ms. Brazier's psychological problems have gone untreated constituted a barrier to recovery.
The opinions of Dr. M.P., Dr. G.Y., Dr. B. and Dr. W. were accepted and preferred to the opinion of Dr. R. who, in fact, did not arrive at any conclusion, other than the conclusion that he could not make a diagnosis on the basis of Ms. Brazier's test results.
The arbitrator also found it significant that Dr. A.Z., who examined Ms. Brazier in the context of a section 42 catastrophic impairment examination and who reviewed Dr. R.'s reports, was able to conclude that Ms. Brazier experienced significant symptoms of chronic depression and chronic pain, and assigned a WPI rating of 22% on account of her psychological impairments.
It was of the arbitrator’s opinion that in time, and with proper medical and rehabilitative support, Ms. Brazier could very well make a successful return to the work force. As stated, Ms. Brazier was motivated to work to support herself and her family. At the time of the hearing, however, the preponderance of the medical evidence suggested that the prognosis for a return to work was guarded.
With respect to Dr. R.Z.'s evidence, his orthopaedic opinion did not conflict with the arbitrator’s conclusion that Ms. Brazier suffered from a largely psychological condition that rendered her currently unemployable. Dr. R.Z. agreed that the etiology of chronic pain could be largely, if not exclusively, psychological.
In short, the arbitrator did not find Dr. R.Z.'s opinion, based on orthopaedic examinations performed at 3 and 6 months post-accident, to be particularly helpful when it came to understanding Ms. Brazier's chronic pain condition, its significant psychological component and its impact on her ability to work.
The primary concern that the arbitrator had with RBC's conduct as it related to Ms. Brazier's IRBs having been unreasonably withheld or delayed arise out of the misplaced Dr. M.P. report and RBC's continued reliance on Dr. R.'s reports over the report of Dr. G.Y.
With respect to the Dr. M.P. report, the arbitrator accepted that there was no attempt to keep the Dr. M.P. report or any relevant medical evidence from RBC's section 42 assessors. The report was misfiled and forgotten, as opposed to intentionally ignored. However, an insurer's conduct needs to be intentional in order to attract a special award. As stated above, willful misconduct, as well as excessive, imprudent, stubborn, inflexible, unyielding or immoderate behaviour may be relevant considerations, especially as it relates to the appropriate quantum of a special award. However, such behaviour was not necessary for a finding that an insurer had unreasonably withheld or delayed payment of a benefit. While it may had been mere negligence in this case that buried the Dr. M.P. report, this did not change the fact that Ms. Brazier was entitled to have RBC either accept Dr. M.P.'s findings or conduct its own timely assessment of her psychological condition and any impairments affecting her ability to work. As a result of RBC's negligence, neither occurrence took place. RBC's negligence also meant that subsequent assessments conducted by RBC were flawed in that the assessors did not have the complete medical record for their review. In these circumstances, the arbitrator found that IRBs were unreasonably withheld as a direct result of RBC's conduct.
The arbitrator also found that it was neither sufficient nor reasonable for RBC to have relied on Dr. R.'s opinion of April 23, 2008 in response to Dr. G.Y.'s report of March 17, 2008. The main problem with Dr. R.'s opinion was that he really did not provide an opinion, especially on the central issue of whether Ms. Brazier's exaggerated responses could be a symptom of her psychological condition and represent a cry for help. Dr. R. had a clear opportunity to respond to that issue when he provided his second report of April 23, 2008. He also had a clear duty to address the issue since his earlier report of January 17, 2008 (that RBC relied upon) found a lack of psychological impairment specifically because Ms. Brazier's responses were exaggerated and unreliable.
For the above reasons, Ms. Brazier was entitled to a special award.