November 23, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Eban Bayefsky
Date of Decision: October 31, 2013
REASONS FOR DECISION
The issues in this hearing are:
1. Is Mr. Mougan entitled to receive income replacement benefits, from August 7, 2008, onward, at a rate of $351.86 per week?
2. Is Mr. Mougan entitled to attendant care benefits, from March 10, 2006 to July 31, 2007, at a rate of $776.06 per month, and from August 1, 2007 to March 10, 2008, at a rate of $112.62 per month?
3. Is Mr. Mougan entitled to payments for housekeeping and home maintenance services, from March 10, 2006 to March 10, 2008, at a rate of $100 per week, less amounts paid?
4. Is Mr. Mougan entitled to receive a medical benefit for the following treatment plans?
a) September 7, 2007, for assistive devices, recommended by Dr. J. Sole, in the amount of $1,054.54
b) January 31, 2008, for treatment recommended by Dr. N. Raffi, in the amount of $2,563.72.
5. Is Mr. Mougan entitled to payments for the cost of the following examinations?
a) a driver evaluation, recommended by Dr. M. Mandel on January 26, 2007, in the amount of $1,366.34
b) an orthopaedic assessment, recommended by Dr. M. Indech on January 29, 2007, in the amount of $1,790.04
c) an in-home and attendant care needs assessment, recommended by Dr. J. Sole on June 7, 2007, in the amount of $1,205.46.
6. Is Allstate liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Mougan?
7. Is Mr. Mougan entitled to interest for the overdue payment of benefits?
8. Is either party liable to pay the other its expenses in respect of the arbitration?
1. Allstate shall pay to Mr. Mougan income replacement benefits, from August 7, 2008, onward, at a rate of $351.86 per week.
2. Allstate shall pay to Mr. Mougan attendant care benefits, from March 10, 2006 to August 10, 2006, at a rate of $776.06 per month, and from August 11, 2006 to March 10, 2008, at a rate of $112.62 per month.
3. Allstate shall pay to Mr. Mougan housekeeping and home maintenance benefits, from March 10, 2006 to August 10, 2006, at a rate of $100 per week, and from August 11, 2006 to March 10, 2008, at a rate of $20 per week, less amounts already paid.
4. Allstate shall pay to Mr. Mougan the following medical benefits:
(a) the cost of assistive devices, as recommended by Dr. Sole, in the amount of $438.65
(b) the cost of a spinal decompression, as recommended by Dr. Raffi, in the amount of $2,563.72.
5. Allstate shall pay to Mr. Mougan the cost of the following examinations:
(a) a driver evaluation, as recommended by Dr. Mandel, in the amount of $1,366.34
(b) an orthopaedic assessment, as recommended by Dr. Indech, in the amount of $1,790.04
(c) an in-home and attendant care needs assessment, as recommended by Dr. Sole, in the amount of $1,205.46
6. Allstate shall pay to Mr. Mougan a special award, in an amount to be determined.
7. Allstate shall pay to Mr. Mougan interest on the benefits ordered to be paid.
Sean Mougan was injured in a motor vehicle accident on March 10, 2006. His car was written off, and as a result he experienced pain in his head, neck, shoulders, chest, low back, buttocks and left leg. He was taken by ambulance to a hospital and treated and released later that night with prescriptions for pain medication. His pain became worse in the following days and he attended a chiropractor who then referred him to a retired family physician with a designation in pain management.
Prior to the accident Mr. Mougan had finished a three year programme at college for glass and aluminum work, having overcome his dyslexia to do so. He worked physically demanding jobs throughout his life most recently as a glazier. He was unable to complete his exams as a glazier due to the accident. He lived a physically active life as well, and sustained injuries to his shoulder and left clavicle, and lower back playing sports. He had certain work-related injuries but always returned to work following recovery. He was briefly in therapy for depression following the failure of a relationship. Mr. Mougan maintained that he was in good health, active and working at the time of the accident.
He applied for and received statutory accident benefits from Allstate however Allstate denied claims for income replacement, attendant care, housekeeping/home maintenance, various treatment plans, driver evaluation, and assistive devices. Allstate argues that they are not required to pay post 104 IRBs as Mr. Mougan is not completely unable to engage in any employment for which he is reasonable suited, and will not participate in rehabilitation. They also maintain that neither the medical evidence, nor Mr. Mougan’s own evidence establishes the requisite degree of disability. They also maintain that he has not been forthright in his claims.
Mr. Mougan attended appointments at Allstate’s request with a psychologist in 2006 who reported he had a “substantial inability with respect to his capacity to engage in the essential tasks of his pre-accident employment.” On January 10, 2007 a psychologist reported that Mr. Mougan “developed difficulties which meet the [DSM-IV] criteria for Pain Disorder Associated with both Psychological Factors and a General Medical Condition and Adjustment Disorder with Mixed Anxiety and Depressed Mood.” The psychologist recommended a course of cognitive behavioural and supportive psychotherapy to address Mr. Mougan’s “depressive and anxiety symptoms and difficulty coping with…pain and inactivity.”
A subsequent CT scan in summer 2007 of his cervical and lumbar spine showed a mild diffuse disc bulge, herniation and moderate compression and disc degeneration in several spots. Consultation with an orthopaedic surgeon confirmed degenerative disc disease (DDD) and recommended back surgery. A neurological exam conducted at the request of Mr. Mougan confirmed a number of injuries directly related to the accident. An MRI in September 2007 of his lumber spine showed mild degenerative bulging discs, herniation, and mild to moderate degenerative changes that had “progressed slightly” in several locations on his spine.
Mr. Mougan began to nerve block injections every two weeks in approximately 2008. They continue to this day. Initially his pain was 9 out of 10, but with the injections the pain is 4 out of 10. He suffers from chronic low back pain, headaches and is on anti-depressant medication. His memory has suffered and he takes sleeping pills.
A psychological assessment in 2009 completed at Allstate’s request indicated he met the criteria of Adjustment Disorder and Mixed Anxiety and Depressed Mood. It also suggested Mr. Mougan continue to participate in psychological treatment.
Mr. Mougan has not been able to work as a glazier due to the heavy nature of the work. He has taken many odd jobs but cannot do heavy lifting and is thus limited. A formal job with an irrigation company was brief due to his inability to perform the work without being in pain. He has looked for sedentary work but is limited by his lack of experience and dyslexia. He also claims he has attending public skating and played non-contact hockey, stating his physiotherapists said it was good for stretching and loosening muscles. His friends helped him put on equipment. Mr. Mougan maintains he cannot return to either his pre-accident work or a suitable alternative.
Mr. Mougan has a Disability Certificate reporting he was not able to return to his pre-accident job, due to the heavy physical demands of that position.
In the spring of 2006 at Allstate’s request Mr. Mougan underwent a number of assessments at ARSI. There an orthopaedic surgeon reported that there was no evidence of impairment. A neurologist reported Mr. Mougan did not suffer from “impairment as a direct result of injuries sustained in the accident that would cause a substantial inability to engage in the essential tasks of his pre-accident employment.” Another psychologist at reported that Mr. Mougan suffered from a Major Depressive Episode following the accident, that he would benefit from a brief course of therapy, and that “his motivation and presenting apathy represent a substantial inability with respect to his capacity to engage in the essential tasks of his pre-accident employment.” An orthopaedic surgeon reported that Mr. Mougan was involved in a “fairly significant three-vehicle high impact collision”, suffered a lumbar disc herniation and “probably required a disc decompression” as a result of the accident and concluded that Mr. Mougan suffered a “substantial inability to perform the essential tasks of [his] pre-accident employment.”
A chiropractor at ARSI conducted a functional abilities examination of Mr. Mougan on December 29, 2007, noting that Mr. Mougan’s “observed behaviour did not match his recorded results, indicating a sub-maximal effort.”, concluding that Mr. Mougan was not disabled from his pre-accident employment, housekeeping tasks or self-care needs. Another chiropractor at ARSI, reported on March 5, 2008 that Mr. Mougan “does suffer a substantial inability to perform the essential activities of his pre-accident employment for the duration of a normal work day” and “would likely not be capable of performing the physical demands at a level consistent with industry standards.”
On March 18, 2008 an addendum report from an ARSI orthopaedic surgeon stated that Mr. Mougan “showed objective physical changes of his low back…confirmed by the MRI examination of his lumbar spine.” Dr. Soriano stated that it was reasonable for Mr. Mougan to “try to return to work on a graduated basis” and that it would be “interesting to see how he copes.” It concluded that Mr. Mougan did not suffer a complete inability to engage in any employment for which he was reasonably suited by education, training and experience.
On May 21, 2008 a chiropractor who assessed Mr. Mougan at the request of his counsel, reported that he could not return to his pre-accident employment as a glazier due to the physical nature of that job, and the amount of time that had passed since the accident. The chiropractor concluded it was “likely that he would have to retrain, and enter a different job, one that requires less physical demands.” In April 2009, the chiropractor reported that Mr. Mougan was unable to engage in any employment for which he was reasonably suited by education, training or experience.
On April 8, 2009 a rehabilitation consultant assessed Mr. Mougan at the request of his counsel and reported that Mr. Mougan was “not realistically employable in his chosen profession of a glazier”, recommending that he undergo formal psycho-vocational testing and concluding that the accident had a “devastating impact on Sean Mougan’s vocational circumstance and earning capacity.” An orthopaedic surgeon’s report from May 2009 supported this position.
A Certified Vocational Evaluator assessed Mr. Mougan at the request of the Insurer in August 2010 stating he would have to make a career change, and listing a number of occupations that might be suitable but that an FAE was required, and that these careers may not offer comparable wages to his pre-accident earnings.
A functional abilities evaluation performed April 21, 2011 at the request of his counsel, reported that “due to lack of education, training, or experience in any other line of work,…he has suffered a complete inability to engage in any employment for which he is reasonably suited.” It was reported at the hearing that Mr. Mougan made a good effort in the tests but little was known of his pre-accident medical condition or educational experience
In order to receive post 104 IRBs Mr. Mougan was required to attend rehabilitation. On June 18, 2008, Allstate terminated Mr. Mougan’s benefits on the basis that he had failed to participate in a “gradual return program, work hardening program.” Notwithstanding the fact that Mr. Mougan completed the work-hardening program over the course of 18 weeks Allstate did not subsequently reinstate Mr. Mougan’s income replacement benefits.
At the hearing Allstate submitted reports from both assessors provided their opinions based on the documentation available from Scarborough Physiotherapy concluding that Mr. Mougan had not successfully completed the program. It was somewhat unclear as to how many times Mr. Mougan attended the program. A “Patient Attendance Report indicated Mr. Mougan attended the work-hardening program 11 times. A hand-written note in the file states “17 sessions completed.” A “Chiro Daily Visit Form” indicates 1 attendance, 2 occasions where the “patient left without chiro tx exercise and modality only”, and 9 “no-shows.”
The Arbitrator found that Mr. Mougan participated in the work-hardening program, within the meaning of section 55 of the Schedule. Mr. Mougan participated in the work-hardening program to the best of his ability. The documentation shows that the doctors considered Mr. Mougan to have been “very compliant with the work-hardening program. The Arbitrator found Mr. Mougan participated in rehabilitation, and that the Insurer ought to have reinstated payment of income replacement benefits, pursuant to section 55(7) of the Schedule.
The Arbitrator found that Allstate should have reinstated Mr. Mougan’s benefits on the basis of his participation in the work-hardening program. As they did not do so the Arbitrator found Mr. Mougan entitled to a special award, and that he was entitled to interest on all of the benefits to which he is entitled.
Allstate submitted surveillance reports and video to challenge Mr. Mougan’s credibility but did not show the video evidence at the hearing. The surveillance did not contain anything at odds with Mr. Mougan’s evidence and the Arbitrator placed no weight on it.
The Arbitrator ruled that while there were some inconsistencies in Mr. Mougan’s evidence, they were minor and did not significantly affect the medical opinions offered. Mr. Mougan’s evidence was credible and reliable, and supports his claim of being disabled from returning to either his pre-accident position or a reasonably suitable alternative. A few assessor comments about the lack of reliability of Mr. Mougan were not considered relevant given the majority view that he gave straightforward and consistent testimony, and provided a reliable effort.
In all of the circumstances the Arbitrator found that Mr. Mougan provided credible and reliable evidence, and that he suffered significant physical, psychological and emotional injuries in the accident and that this prevented him from returning to his pre-accident employment or a suitable alternative. He met the test at the two year mark being completely incapable of returning to suitable alternative employment.
Mr. Mougan claimed attendant care benefits for the first two years following the accident. Allstate maintained Mr. Mougan’s injuries were not serious, that he did not suffer from chronic pain, and that he did not require the attendant care assistance claimed.
The Arbitrator found that Mr. Mougan is entitled to attendant care benefits from March 10, 2006 to August 10, 2006, at a rate of $776.06 per month, and from August 11, 2006 to March 10, 2008, at a rate of $112.62 per month. The Arbitrator did not agree Mr. Mougan’s injuries were within the PAF Guideline.
The Arbitrator reviewed the law and the evidence, and as with Mr. Mougan’s claim for attendant care benefits found he is entitled to housekeeping benefits, but not to the extent claimed. The Arbitrator ruled Mr. Mougan entitled to housekeeping benefits, from March 10, 2006 to August 10, 2006, at a rate of $100 per week, and from August 11, 2006 to March 10, 2008, at a rate of $20 per week, less amounts already paid by the Insurer.
Assistive devices and treatment plan payment were claimed by Mr. Mougan and the Arbitrator found that the evidence established he would benefit from the use of assistive devices and spinal decompression. The Arbitrator also found that Mr. Mougan was also entitled to seek a new in-home assessment to be paid for by Allstate.