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Insured entitled to IRB's as evidence was credible and supported by experts.

June 06, 2011, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Arbitrator: Judith Killoran      
Decision Date: July 23, 1020

Phillip Carr, was injured in a motor vehicle accident on January 30, 2008. He applied for and received statutory accident benefits from TD General Insurance Company ("TD General"), payable under the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Carr applied for arbitration at the Financial Services Commission of Ontario.
Issues:
1.      Was Mr. Carr entitled to receive a weekly income replacement benefit at the rate of $326.45 from May 20, 2009 to date and ongoing, pursuant to sections 4 and 5 of the Schedule?
 
2.      Was Mr. Carr entitled to receive medical benefits in the amounts of $2,145.62 for treatment related to a treatment plan dated August 11, 2009 and $3,944.87 for psychological treatment related to a treatment plan dated October 6, 2009, pursuant to section 14 of the Schedule?
 
3.      Was TD General liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Carr?
 
4.      Was Mr. Carr entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Background:
Mr. Carr was born in Jamaica in 1952. He worked in Jamaica for 11 years as a port worker loading and unloading cargo for at least 40 hours a week and more with overtime, and then for 5 years as a chauffeur before immigrating to Canada in 2002. 

Mr. Carr was involved in an accident on January 30, 2008 when he was driving home from work. He was taken by ambulance to hospital where he had tests and x-rays. The x-rays disclosed 2 broken ribs for which he received a prescription for pain medication. He saw Dr. C, a family physician, the next day. Dr. C sent him for another x-ray and recommended physiotherapy treatment. Subsequently, Dr. C completed disability certificates dated February 19, 2008, May 14, 2008, August 14, 2009, and April 12, 2010.
Income Replacement Benefits

Mr. Carr sought income replacement benefits under subsection 4(1) of the Schedule which states: 
The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:
The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
Mr. Carr is also seeking income replacement benefits under subsection 5(2) which states:
The insurer is not required to pay an income replacement benefit,
(b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.

At the hearing Mr. Carr and his wife, Paulina Carr, testified about the issues in dispute. Two medical experts who had performed assessments for the insurer were cross-examined by Mr. Carr's counsel with respect to the issue of income replacement benefits. The two expert witnesses were: Dr. B, orthopaedic specialist, and Dr. R, chiropractor.

Mr. Carr testified that when he came to Canada in 2002, he began working at a factory packing finished parts into boxes for the automotive industry which involved lifting heavy brake shoes of up to 40 pounds. His job required considerable bending, twisting and heavy lifting. Mr. Carr was laid off in 2004 when the plant closed down and he received employment insurance benefits for 38 to 40 weeks.
 In June 2006 he began a job he where he lifted and packed windows and doors at the rate of approximately 40 doors per hour and 70 windows per hour. He lifted up to 100 pounds on his own and up to 200 pounds with help. He worked 40 hours a week for $12.65 per hour.  Mr. Carr's employment was terminated on February 2, 2009, as he had not returned to work since the automobile accident.

Mr. Carr confirmed that in August 2007, he felt a strain over his shoulders and neck and visited a walk-in clinic. He was prescribed pain medication and the pain disappeared about 4 weeks later. He missed no time from work as a result of this incident.
At the time of the accident, Mr. Carr lived with his wife, who did not work outside the home, his son, his stepdaughter and her 2 children. Before the accident, he had an active social life, went to church and had no difficulties driving a vehicle.
Mr. Carr testified that injuries from the car accident affected the following parts of his body: neck, shoulders, the ribs on his left side, and lower back. He also experienced pain across his body from the neck down involving both arms, both hands and both legs with swelling across his back. He suffered from depression and headaches which were severe and constant. Now his headaches fluctuate, sometimes they go away only to return.

In the first month after the accident, Mr. Carr experienced pain that was constant and severe. After the first month, he testified that he felt 40% better. The pain was constant but not as severe.
After the accident, he had financial worries and suffered from loneliness and depression as he could not return to work. His left side hurt, all the way to his foot, when he went walking. Mr. Carr expressed his feelings of shame about being unable to contribute financially to his family. His injuries also affected his social life and his churchgoing activities. He had trouble driving, no longer owned a car, and had constant pain on the side of his neck, especially when he tried to turn his head. Mr. Carr's typical day involved watching TV programs, some reading, especially of the Bible, some meditation, and an occasional walk. He experienced difficulty communicating with his wife and their relationship had suffered since the accident.

Mr. Carr testified that he did not return to work because he was in constant pain and felt depressed. He obtained only a Grade 6 education and was not trained for any work other than heavy labour. He testified that he could not return to a job as a chauffeur, or indeed any driving job, due to his neck and back pain.

In July 2009, Mr. Carr's wife had heart surgery and TD General Insurance implied that Mr. Carr's weight decreased from 185 pounds to 165 pounds because his wife did the cooking, but Mr. Carr attributed his weight loss to depression. Family members helped during Mrs. Carr's recuperation from surgery but Mr. Carr was not able to help much, except in a minor way. He described his feelings of helplessness at that time. 

At his assessment with Dr. C, Mr. Carr told him that he had pain in his neck, ribs, particularly his left ribs which were fractured, and his lower back. In April 2008, Mr. Carr reported that he was 60% improved, particularly his neck. In the progress reports from physiotherapy, there was no mention of low back pain. Mr. Carr was insistent when he testified that he told his treatment providers about his low back pain.
Mr. Carr confirmed his functional evaluations with Mr. B, exercise physiologist. Mr. B described Carr’s work as heavy material handling and documented the physical demands. He referred to a physical demands analysis report prepared, at the insurer's request, by Mr. F, kinesiologist, on May 24, 2008.  
Mr. B also documented Mr. Carr's performance at functional tasks. Mr. Carr demonstrated functional limitations in several regions and exhibited general deconditioning.  Mr. B concluded that Mr. Carr's functional capacities were not consistent with performing heavier activities of normal living such as house/yard tasks or meeting the essential physical demands of his pre-accident employment.

In his second report, Mr. B made similar observations and conclusions but went further by stating that Mr. Carr's functional capacities are not consistent with meeting the essential physical demands of most sedentary work. Therefore, he found that it was reasonable to conclude that Mr. Carr was not able to perform any work in any capacity.
In his third report, Mr. B found that there had been some improvement with respect to muscle strength in the neck/shoulder region. However, he concluded that Mr. Carr was not able to perform any work in any capacity.
Mr. Carr was examined extensively by several medical professionals, physiotherapists, physiologists, and other specialists assessing his injuries in the period from his accident in January 2008 through April 2010. The details of the assessments of these specialists can be found in the ruling. The numerous medical and professional opinions were neither consistent, nor did some paint a complete picture of Mr. Carr’s employment capacity, his employment limitations, and his injuries.
Mrs. Carr testified and corroborated much of Mr. Carr's testimony. She observed that he had pain in his neck, his side, his back and down his leg after the accident. She complained that after the accident, her husband was generally very unhappy due to pain and his inability to return to work. Mrs. Carr testified that her husband no longer drove very often and only for short periods of time. According to her, there has been little improvement in his condition since the accident. Generally, he stayed in their basement apartment and watched television.

The arbitrator in the case weighed Mr. Carr’s testimony, Mrs. Carr’s testimony and all of Mr. Carr’s assessments carefully.
Conclusion re: Income Replacement Benefits

The arbitrator found Mr. Carr to be a strong, credible witness who was honest and straightforward. Mr. Carr's wife was also an impressive witness who corroborated his testimony. He attributed considerable weight to the assessments and reports and recommendations of six of the medical and occupational evaluators, all of which supported Mr. Carr's claims

The arbitrator placed little weight on the fact that Mr. Carr attended a walk-in clinic in August 2007, and accepted Mr. Carr's testimony that he missed no work as a result of this pain and fully recovered within weeks of taking pain medication.

The arbitrator concluded there were inconsistencies and weaknesses in two other doctor’s reports and in their testimony. The arbitrator placed little weight on their reports and testimony. These assessments contained omissions considered important to the case. Details of the omissions can be found in the ruling.

Mr. Carr relied on a number of cases in support of his claim for income replacement benefits. In Donald Martin v. Workers' Compensation Board of Nova Scotia and Attorney General of Nova Scotia et al, the Supreme Court of Canada  provided guidance for adjudicators dealing with issues of chronic pain and related medical conditions. The court drew the link between chronic pain and disability in these words: 
There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite the lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real.
In Shubrook and Lombard General Insurance Company of Canada , the arbitrator discussed the implication of the Supreme Court's decision in Martin that it is not appropriate or legally justifiable to stereotype individuals whose disabilities happen to be "less visible" than others.
The insurer placed a good deal of importance on the fact that back pain was not consistently referred to in the medical reports. The insurer submitted that it was only on March 14, 2009 that there is mention in the family doctor's clinical notes and records of pain in Mr. Carr's left lower back. The insurer explained this by saying that Mr. Carr was a 57 year old man suffering from possible nephritis and a kidney stone, based on Dr. C’s clinical notes. From November 2008 to March 2009, there is no mention of pain in Mr. Carr's back.
However, the ambulance call report on the day of the accident noted Mr. Carr's back pain.  The real issue is disability not diagnosis. Basing a diagnosis on subjective clinical findings or lack thereof ignores the case law. The arbitrator accepted the testimony of Mr. and Mrs. Carr that Mr. Carr's back pain was caused by the accident.

The Arbitrator did not accept the TD General Insurance’s claim that Mr. Carr's condition worsened because of his wife's medical history and a new injury to his back, and accepted that Mr. Carr’s inability to look after his wife during her surgery was caused by the accident. 
The arbitrator again weighed the many conflicting assessments of Mr. Carr’s condition and determined that some were based on very thorough and lengthy examinations, while others were based upon much shorter testing.

The arbitrator paid particular attention to the assessment prepared by vocational evaluation specialist Dr. A, a registered rehabilitation professional, prepared for Mr. Carr and dated November 26, 2009. Dr. A concluded that prior to the accident Mr. Carr was suited to performing occupations which had predominantly medium to heavy physical requirements with no other realistic job options which had fewer demands. He believed that Mr. Carr remains a poor candidate for upgrading and retraining so that because of the accident and his ongoing symptoms, he had lost income, vocational opportunity, security and competitive advantage. Dr. A perceived Mr. Carr to be a "proud, independent individual" who impressed him as "responsible, honest and hardworking."

Another corroborating assessment prepared by Dr. M, psychologist found that Mr. Carr was unable to work in any capacity as a result of his "pain problems, his low functional activity and functional levels and his significant depression Dr. M went on to say that Mr. Carr's vocational options are limited as well by his age, his Grade 6 education and his limited skills.

The insurer submitted that the post-104 week disability is a difficult test to meet under the Schedule. The insurer relied on Lombardi and State Farm Mutual Insurance Company and the arbitrator's findings that "complete inability" as a phrase modifies "any employment", distinctly referring to the range of all suitable jobs which raises the standard beyond a relatively sizeable inability for each job.
The insurer also relied on Burtch v. Aviva Insurance Company of Canada which ruled that it is not necessary for an insured person to be formally qualified and able to begin work immediately 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. Due to Mr. Carr's work history as a chauffeur, the insurer submitted that he could work as a chauffeur or a cab driver as an alternative. 

The Arbitrator did not agree with TD General Insurance’s submissions that the 104-week disability test under the Schedule was not met due to Mr. Carr's former employment as a chauffeur. All of Mr. Carr's employment years in Canada were relevant to determine the nature of his work. Further, Mr. Carr had testified that he could only drive short distances. His fear of driving and his physical pain when he turned his head was discussed by Dr.D who significant symptoms which warranted attention, but concluded that Mr. Carr did not suffer from a substantial inability to perform the essential tasks of his employment.

The insurer challenged the nature and location of Mr. Carr's pain and disability. Whether Mr. Carr had neck and rib pain which then metamorphosed to back pain is not the issue.
The issue is whether Mr. Carr sustained an impairment, defined as a "loss or abnormality of a psychological, physiological or anatomical structure or function" that resulted in a substantial inability to perform the essential tasks of his employment and post-104 weeks and whether he was disabled from engaging in any employment for which he is reasonably suited by education, training or experience.  Mr. Carr does not own a car and drives only for short duration due to pain.  He is incapable of training for a chauffeur's position or related driving occupations, due to persistent, intractable pain.

The arbitrator found that Mr. Carr has met his burden of proof to establish, on the balance of probabilities, that he sustained an impairment as a result of the accident such that he suffered a substantial inability to perform the essential tasks of his employment.  Mr. Carr also met the post-104 week disability that he was disabled from engaging in any employment for which he is reasonably suited by education, training or experience. Citing the conclusions in  Neumeyer v. Wawanesa Mutual Insurance Company the arbitrator found that Mr. Carr's disability must be viewed in the context of his competitiveness in the existing marketplace.
The arbitrator concluded that on the balance of probabilities the evidence demonstrates that there were no realistic opportunities for full-time employment for Mr. Carr given the expectations of a reasonable employer.
The arbitrator reviewed several treatment plans, the details of which can be found in the decision. The plans were found to be reasonable and necessary, and found that Mr. Carr would benefit from more than one form of treatment. 
Conclusion re: treatment plans
Physiotherapy treatment plan:
The arbitrator found that the insured was entitled to receive the physiotherapy treatment recommended but denied by the insurer. There was medical evidence to support the need for the treatment and that it was providing a benefit to the insured. The arbitrator noted that the assessor that prepared an insurer medical assessment report did not have a number of other medical reports prepared on behalf of the insured, that there were numerous errors and inconsistencies in the report and that he ignored range of movement findings, ignored his job duties and ignored pain and subjective complaints to Mr. Carr's prejudice.
Psychological treatment plan:
The experts for both sides acknowledge some degree of psychological impairment. The assessor for the insurer felt that Mr. Carr required a more comprehensive pain management program than what was recommended by the treatment plan. However, the arbitrator noted that Ms. K, who had prepared the disputed treatment plan, assessed Mr. Carr in a thorough fashion and her reports reflect a realistic understanding of what would be beneficial to Mr. Carr in his situation. While the arbitrator saw merit in many of the observations and recommendations made by the assessor for the insurer, the arbitrator felt that Mr. Carr should not be restricted to only one form of treatment. Therefore the proposed treatment plan was  found to be reasonable and necessary.
Interest

Mr. Carr is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.
 
Special award

Subsection 282(1) of the Insurance Act states that: 
If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount of which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Mr. Carr criticized the quality of the medical reports relied on by the TD General Insurance and the arbitrator found considerable merit in many of the criticisms of the reports, particularly the failure of the insurer to provide the assessors with updated medical information. 
The arbitration hearing itself provided a forum for a careful, thorough review of all the medical assessments and reports. Prior to the hearing, the insurer followed the procedural requirements of the legislation. The arbitrator found that there were serious flaws in the assessments and medical reports relied on by the insurer to make its decisions about Mr. Carr's entitlement but was not persuaded that the insurer met the standard of unreasonably withholding or delaying payments to Mr. Carr.
It was not unreasonable of the insurer to withhold the payment of benefits to Mr. Carr based on its deference to the medical opinions of its own assessors. However, it is to be hoped that insurers will aspire to a higher standard resulting in a more careful review of their medical reports, comparing and contrasting them with those of their insured, so as to guarantee the utmost fairness in their handling of claims. 

Result:

1. Mr. Carr is entitled to receive a weekly income replacement benefit at the rate of $326.45 from May 20, 2009 to date and ongoing, pursuant to sections 4 and 5 of the Schedule.

2. Mr. Carr is entitled to receive a medical benefit in the amount of $2,145.62 for chiropractic treatment related to a treatment plan dated August 11, 2009 and $3,944.87 for psychological treatment related to a treatment plan dated October 6, 2009, pursuant to section 14 of the Schedule.

3. TD General is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Carr.

4. Mr. Carr is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.
Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Chronic Pain, Disability Insurance, Pain and Suffering, Physical Therapy, Treatment

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

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