February 10, 2012, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Before: Edward Lee
Decision Date: January 16, 2012
The Applicant, John Florek, was injured in a motor vehicle accident on March 24, 2006. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule. State Farm terminated weekly income replacement benefits on February 28, 2006. The parties were unable to resolve their disputes through mediation, and Mr. Florek applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.
John Florek claims income replacement benefits from February 28, 2008 and ongoing at the rate of $400.00 per week. He states that his motor vehicle accident of March 24, 2006 has caused him to suffer pain in the form of severe and persistent headaches, low back ache, neck ache and shoulder ache, problems with concentration and the reduction of his cognitive abilities. As a result, he has been disabled from performing his pre-accident employment as a trim saw operator, and in the period commencing 104 weeks after his accident, he has been disabled from performing any other employment for which he is reasonably suited by education, experience or training.
State Farm argues that there are no objective medical findings or evidence to substantiate any of Mr. Florek's pain-related and pain-based symptoms. Mr. Florek's medical history also proves that his problems predated and were not caused by the motor vehicle accident. Further, Mr. Florek was not credible concerning the level, nature and duration of his pain-related disability. He was contradicted by medical evidence and other documentation. Therefore, Mr. Florek is not disabled from performing his pre-accident employment or any other employment for which he is reasonably suited by education, experience or training
- Were John Florek's complaints of pain and pain-based problems credible?
- Is John Florek entitled to pre-104 week IRBs of $400.00 per week from February 28, 2008 to March 24, 2008?
- Is John Florek entitled to post-104 week IRBs of $400.00 per week from March 25, 2008 and ongoing?
- Is John Florek entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
- Which party is liable to pay expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
- Mr. Florek's complaints of pain and pain-related problems were credible.
- John Florek is entitled to pre-104 week IRBs of $400.00 per week from February 28, 2008 to March 24, 2008.
- John Florek is entitled to post-104 week IRBs of $400.00 per week from March 25, 2008 and ongoing.
- John Florek is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.
- State Farm is liable to pay Mr. Florek's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
EVIDENCE AND ANALYSIS:
Pain and pain-related problems, if caused by a motor vehicle accident, may result in an insured person being disabled from performing the essential tasks of his employment or from performing any employment for which he is reasonably suited by education, experience or training. In some cases there may be no objective medical evidence of the insured's impairment, but this in itself is not a bar to entitlement to accident benefits. In cases of little or no objective medical evidence, the credibility of the insured person is of paramount importance (Quattrocchi and State Farm Mutual Insurance Company, September 29, 1997)
State Farm contested this case almost entirely on credibility, arguing that Mr. Florek's evidence was replete with implausibilities, exaggerations, and inconsistencies. It challenged his version of his work history, highlighting past attempts to find other employment, and events in his personal life. It argued that his symptoms and pain complaints varied over time. In addition, there were contradictions regarding the physical demands of his employment, the onset, evolution and deterioration of his symptoms, his pre-accident health history, and a "disconnect" between the evidence given by Mr. Florek at the hearing and what was recorded in the notes and records of health providers. Finally, there were no significant physical findings to substantiate Mr. Florek's claims.
The Arbitrator’s assessment of Mr. Florek's credibility and analysis of State Farm's other assertions follow.
1. Were John Florek's complaints of pain-related and pain-based problems credible?
Mr. Florek's testimony at the hearing:
Mr. Florek testified over the course of three days in regard to his painful and persistent headaches, sleep problems and the other pain-related issues in his neck, back and shoulder. He spoke about his loss of concentration and the reduction of his cognitive abilities. The examination-in-chief was interrupted to accommodate other witnesses. Mr. Florek was cross-examined at length about the accident, his personal health (including injuries to his back that occurred over twenty years ago), and about statements made during the dozens of visits he attended before various treatment providers, including Dr. D, chiropractor, and Dr. K, physiatrist.
The Arbitrator rejected State Farm's suggestion that his testimony was "replete with implausibilties, exaggerations and inconsistencies." Overall the Arbitrator found Mr. Florek testified credibly and in a straightforward manner about the accident, his post-accident life, and the effects of the accident and noted that none of the medical examiners (including those of the insurer), suggested that Mr. Florek had expended less than maximal effort in testing or had been uncooperative in medical examinations. There was no suggestion of exaggeration, symptom magnification or any attempt to circumvent or influence the results of testing.
Any inconsistencies or exaggerations in Mr. Florek's testimony were minor and likely attributable to the lengthy interval between this hearing and the occurrence of the relevant events. Further, nothing struck the Arbitrator as so implausible as to be wholly unbelievable. Instead, the Arbitrator found his testimony was consistent throughout, and more importantly it was consistent and believable when taken in context with the evidence given by lay witnesses, the medical evidence, and the totality of the case presented, including State Farm's theories about his dissatisfaction at work and his involvement with Boomer X, a software company he co-founded.
In some instances Mr. Florek simply stated that he could not remember what he had said or could not explain why something he might have said had not been recorded by examiners during conversations that took place years before. This detracted little from the Arbitrator’s assessment of Mr. Florek's credibility. None of those examiners (apart from Dr. D and Dr. K) appeared to testify as to the accuracy of their note-taking ability. It is hardly surprising that Mr. Florek could not remember everything he had said in the years since his accident.
The Arbitrator rejected State Farm's assertion that there was a "disconnect" between Mr. Florek's testimony and the medical record. The Arbitrator found that Mr. Florek's testimony about his health issues was consistent with what was generally recorded in the medical reports, and in particular, the reports of Dr. D, who except for a brief period, has seen Mr. Florek two or three times a week continuously since the accident. The Arbitrator found Dr. D was a strong, convincing and credible witness. Contrary to State Farm's submissions, Dr. D testified that he had noted deterioration in Mr. Florek's condition after his return to work in October 2006, and another deterioration after the functional abilities examination of January 2008. Contemporaneous notations regarding these observations were found in his notes.
Notation of pain and other complaints
The Arbitrator rejected State Farm’s argument that because Mr. Florek's symptoms "varied significantly over time", they were not to be believed. This was simply not a convincing argument. There was no medical evidence to suggest that Mr. Florek's symptoms and pain had to remain constant, consistent or of the same intensity during the five-and-a-half-year interval since his accident. Dr. D testified as to the improvements and setbacks Mr. Florek experienced during the long period of his convalescence. Some of these changes were attributable to increased stresses he experienced during a return to work, or examinations he underwent. The evidence of Dr. K, another highly credible and convincing witness, was that some of Mr. Florek's symptoms had come on gradually with the passage of time.
State Farm attempted to paint Mr. Florek as a malcontent who had a long history of dissatisfaction and unhappiness at his job. He had suffered injuries and experienced breathing difficulties at his workplace, and had sought other employment. There was thus a lack of motivation to return to work, and every motivation for him to remain disabled from work.
The Arbitrator rejected this theory. First, Mr. Florek worked for fourteen years at StoreImage Programs Inc., commencing in 1992. That history was broken only by a single period in 2001 when he left to pursue self-employment as a photographer for approximately one year. No evidence was presented of him having been a poor or disgruntled employee. No evidence was tendered that he had been a malingerer or had shirked his duties. The uncontroverted evidence was that Mr. Florek was a satisfied worker who had a good, stable job in a unionized environment with benefits, where his income was $41,804.00 in the year before his accident. His uncontradicted testimony was that he liked the work he did on the "floor" as a trim saw operator, and he had chosen that job over his previous office position as an accounts manager because he wanted more time to attend to his ailing parents.
The Arbitrator was unconvinced that simply because he sent out a number of résumés in 2003 that he was necessarily unhappy with his work. Mr. Florek was still at work in March 2006 when his accident occurred. The circulation of a few résumés in the course of a fourteen-year career proves little or nothing about job satisfaction.
Further, although there were scattered indications in the documentation that Mr. Florek had experienced past medical problems, they had little impact on his employment. For instance, he suffered a fractured spine twenty-two years before. He experienced stress at work in 2001, sore joints in 2001, mechanical back pain in 2003 (which caused him to be off work for a one-month period) and breathing difficulties in 2003 and 2006. Nonetheless, Mr. Florek remained at his job during this time and until March 2006. The medical record did not suggest that these problems were continuing, deteriorating or had lead to excessive and repeated absence. The documentation did not demonstrate an increase in intensity, frequency or duration of these problems before his motor vehicle accident. By all accounts, he was performing his work duties without major difficulty.
There was conflicting evidence as to whether Mr. Florek's work was in the "moderate" or "very heavy" range for lifting. The Arbitrator resolved this discrepancy in favour of Mr. Florek, who submitted the Job-site Assessment of Ms. T, kineisiologist. That document indicated that he had to lift as much as 130 pounds in the performance of his job. The letter of DB, payroll and benefits coordinator, suggested that he only lifted a maximum of 60 pounds infrequently.
Job-site assessment was a thirteen-page report, replete with photographs, setting out and describing Mr. Florek's work, workplace and the machines he operated in detail. Every nuance of his job function was defined and discussed. The report also referenced Mr. Florek and his Human Resources Manager, ST, as sources of information.
In contrast, the letter of DB was comprised of four short lines. It cited an unnamed "supervisor" as the source of this information.
Ms. DB was not presented as a witness. No context was given for her letter; nor was the full name of its intended recipient revealed. When questioned on the apparent contradiction, Mr. Florek testified that his human resources manager, ST (a corroborating source for the Job-site Assessment report), knew Mr. Florek's job very well and had even been the former chair of the workplace Health and Safety Committee. Further, the weights of the material were stamped on the material itself, so to remain within the tolerances of the machines in the shop.
The Arbitrator found the explanation and testimony of Mr. Florek far more believable and probative than the unsupported statement in the four-line letter tendered by State Farm. The Arbitrator rejected State Farm's suggestion that the unsworn evidence of a Payroll and Benefits Coordinator and an unnamed supervisor should be more credible than that of a human resources manager who had personal knowledge of the job. Finally, the breadth and detail of the report prepared by ST lent it far more credence than the Boyd note.
All the medical examiners recorded Mr. Florek's complaints of pain and pain-related problems.
Dr. B, orthopaedic surgeon, admitted that the injuries were caused by the motor vehicle accident, but could find no musculoskeletal basis to Mr. Florek's problems. Dr. S, physiatrist, did not find any evidence of physical abnormality or condition to explain Mr. Florek's symptoms, but diagnosed him with chronic pain syndrome. Dr. P, chiropractor, determined that that Mr. Florek was a "chronic pain patient" and found there were no valid/objective indicators of musculoskeletal/neurological injury. Ms. D, physiotherapist, found that Mr. Florek's participation in her evaluation was good and that he had performed all tasks and protocols required. Dr. R D, neurologist, determined that Mr. Florek's headaches were precipitated by the motor vehicle accident, although the low back pain was non-neurological. He did not find any neurological impairment or disability.
State Farm returned again and again to this theme: that there was no "objective" or significant medical basis for Mr. Florek's pain–related problems or impairments.
First, the Arbitrator was not even convinced that this assertion is correct. Second, even if it is correct, such a conclusion would not necessarily disentitle Mr. Florek from accident benefits. As noted by State Farm, the judicially accepted position is that it is not necessary for the applicant to prove that he or she experiences pain evidenced by "objective" medical proof.
Dr. K testified cogently and convincingly in regard to his diagnosis of fibromyalgia and chronic pain syndrome for Mr. Florek. The Arbitrator accepted Dr. K's testimony that objective medical evidence for Mr. Florek's pain and pain-related complaints could be found in the trauma revealed through facet joint testing, the MRI of October 16, 2007 (which revealed bulging at L4 and L5 and L5/S1), the sleep study (which showed that Mr. Florek's sleep had been negatively affected by his injuries) and in the loss or reduction of Mr. Florek's VNIC nerve response. The Arbitrator also accepted his testimony that the motor vehicle accident caused the pain and pain-related problems.
The Arbitrator disagreed with State Farm's assertions that Dr. K's conclusions somehow contradicted the reports of Mr. Florek's own examiners, Dr. M K and Dr. B D, M.D. Their conclusions were entirely consistent with those of Dr. K. Dr. B D found that "… pain continues to limit Mr. Florek." There has been a "lack of improvement", leading to a poor prognosis. Dr. M K determined that Mr. Florek suffered from "… a chronic myofascial sprain/strain most specifically to the thoracolumbar spine with mechanical low back pain and deconditioning as well as cervicogenic headaches and generalized chronic pain… his current presentation [was] directly and causally related to the motor vehicle accident."
Car Rental Agreement
State Farm adduced a car rental agreement (Mr. Florek's car was written off due to the damage after the motor vehicle accident) to prove that Mr. Florek rented a car for nineteen days following his accident, during which he drove 2,971 km (an average of almost 160 km per day). Mr. Florek did not deny renting the car, the Arbitrator did not find that this rental refuted any of his evidence. For instance, Mr. Florek's testimony was that the full magnitude of his symptoms and injuries manifested themselves only gradually after his motor vehicle accident. The evidence of Dr. K was that the pain was exacerbated as time went on and some of the debilitating symptoms of fibromyalgia took time to develop.
Although Mr. Florek's accident occurred on a Friday, he did not consult a doctor until the following Monday. Mr. Florek never stated he was unable to drive during the initial period following his accident. In fact, Mr. Florek's history was he experienced an initial improvement and lessening of his symptoms up to his return to work in October 2006. The fact that Mr. Florek rented a car and may have driven an average of 160 km per day in the nineteen days following the accident was not incompatible with any of the evidence.
State Farm sought to prove that Mr. Florek derived pre and post-accident income from Boomer X, a software company he co-founded in the early 2000's with his partner, JG. The company was to develop a software package for lawyers' accounting practices. JG was the programmer. Mr. Florek, although a student of computer science in university during the mid-1980's, had no knowledge of the programming languages required to create this software. He was involved in the marketing process and consulted his uncle, a lawyer, for ideas and inspiration. Despite long and vigorous questioning by State Farm, there was no evidence that Boomer X became successful or that Mr. Florek derived any income (pre or post-accident) from this company. The company was eventually sold and its software was ultimately issued as "shareware" to internet users.
Wendy Florek, KS and JG all testified credibly and corroborated John Florek's account of his symptoms and injuries, as well as his pre-accident and post-accident history and activities. State Farm produced no evidence to impeach any of this testimony.
Their uncontradicted evidence was that Mr. Florek lived on a property over four acres in size. Previous to his accident, he was an extremely active individual: running, hiking, mountain climbing and canoeing. His interests were wide and diverse: he was a "do-it-yourselfer" who had been building a playground for his children, he liked photography, and he was an avid reader and conversationalist. Amongst other housekeeping duties, he handled all outdoor maintenance, including lawn mowing, wood cutting and clearing. Post-accident, these activities have been almost completely curtailed because of his pain and pain-related problems. Mr. Florek's gait has even changed, becoming slower. He is not able to converse as he once did.
Mr. Florek's wife, added that Mr. Florek has not worked since the accident and they have suffered a reduction of income, requiring them to deplete her inheritance on household expenditures. They have refinanced their home. Mr. Florek no longer even plays with his children as he did previous to his accident. She has noted his loss of concentration, energy and his inability to carry on a lengthy conversation. She also corroborated Mr. Florek's account of an incident where he was unable to get up after falling from his tractor.
KS, a family friend, testified he now helps Mr. Florek with outdoor maintenance and sometimes drives him to medical appointments. He also corroborated Mr. Florek's testimony that at times, Mr. Florek was so affected by pain that he was unable to get out of bed.
Return to Work Attempt
Mr. Florek attempted one return to work in October 2006. Up to that time, he had been experiencing an improvement in his symptoms, and he returned to work for a week on modified duties. The return to work exacerbated his condition and he was unable to continue. His employer told him to produce a medical note clearing him for further work but he was unable to obtain one from his doctors.
The Totality of the Evidence
Taken overall, the evidence overwhelmingly supports Mr. Florek's account of his accident-related impairments and disabilities. State Farm's theory would require the Arbitrator to find that three lay witnesses colluded and falsified their testimony. Two medical witnesses would have erroneously concluded that his pain and related disabilities were caused by the accident. Mr. Florek, who previously made over $40,000 per year, would drastically alter his lifestyle, change his relationship with his children, refinance his home and deplete an inheritance, all to receive approximately twenty thousand dollars of IRBs per year. This is simply not substantiated by the evidence.
2. Is John Florek entitled to pre-104 week IRBs of $400.00 per week from February 28, 2008 to March 24, 2008?
Mr. Florek's IRBs were cut off on February 25, 2008. He would be entitled to further IRBs of $400 per week to March 24, 2008 if, as a result of the accident, he suffered a substantial disability from performing the essential tasks of his pre-accident employment.
Dr. K testified Mr. Florek's injuries were a direct result of the car accident, and the Arbitrator agreed with this conclusion. Not only did the medical evidence support this finding, but it was also supported by his employment history. Arbitral jurisprudence holds that the motor vehicle accident must be a significant contributing factor in causing the disabling injury or impairment. This was also substantiated by the fact that Mr. Florek worked at StoreImage Programs Inc. with little difficulty for almost fourteen years before his accident. His return to work in October 2006 led to an exacerbation of his condition, and his employers prohibited him from any further work without medical clearance. Mr. Florek was never able to obtain that clearance.
Mr. Florek's pre-accident employment was as a trim saw operator. It was uncontradicted that this work involved lifting, moving and the placement of heavy building materials in a workshop. The Arbitrator already determined that the work-site assessment of CT was a more credible and probative document than the Boyd note. CT’s report categorized Mr. Florek's pre-accident work in the "very heavy" range. The Arbitrator accepted that conclusion.
The Arbitrator accepted Mr. Florek's testimony of his headaches, pain and pain-related problems in his back, neck and shoulder, and in regard to his current restrictions and reductions in his physical and mental abilities. Mr. Florek's medical complaints have been supported by the testimony and reports of Dr. B D, Dr. K and others. Even State Farm's medical examiners recorded and noted Mr. Florek's protracted pain condition and poor prognosis for recovery.
The Arbitrator was satisfied that Mr. Florek suffers a substantial inability to perform the essential tasks of his pre-accident employment and is thus entitled to IRBs to March 24, 2008.
3. Is John Florek entitled to post-104 week IRBs of $400.00 per week from March 25, 2008 and ongoing?
Mr. Florek is entitled to IRBs of $400 per week from March 24, 2008 and ongoing, if, as a result of the accident, he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suitable by education, training or experience.
Arbitral jurisprudence has held that this "complete inability" test is satisfied if the insured is unable to meet reasonable standards of productivity in a competitive marketplace in a position with comparable pay to his pre-accident job, for which he is suited by education, training or experience. The position must not require extensive training and must take into account the availability of positions in the area where Mr. Florek resides.
Mr. Florek referred the Arbitrator to the vocational and psycho-vocational assessments and reports prepared by JK Consulting Inc. The Arbitrator noted a few of the observations in those reports:
Overall, John's performance on testing, his symptoms complaints, and the medical opinions appear rather consistent. I find it hard to envisage this gentleman, who is obviously struggling with pain, functional limitations, poor sleep, fatigue, cognitive difficulties and troubled emotions performing adequately in any type of competitive employment. Although he is bright and possessing of useful skills, I cannot see how he could either obtain or sustain employment of any kind on a regular, consistent, reliable or competitive basis.
As for retraining, the reports had this to say:
John would like to alternatively retrain for a design career in the industrial area. However, he is doubtful he could remain focused on his studies given his ongoing cognitive difficulties. In addition, a design career would involve prolonged sitting and driving out to work sites. John feels that his headaches and neck, as well as low back pain would be exacerbated with keeping his neck bent, and sitting in a static position for prolonged periods. John also lacks energy and stamina. He sleeps poorly and feels fatigued during the day.
These statements are consistent with the Arbitrator’s observations of Mr. Florek in testimony, the testimony of the lay witnesses, and are substantiated by the medical evidence of Dr. K, Dr. BD and others.
Importantly, the Arbitrator noted State Farm was unable to specify a single job that Mr. Florek might pursue for which he was reasonably suitable by education, training or experience. State Farm did not even submit a vocational report. Instead, State Farm argued that Mr. Florek's high-average to above-average intellect, his post-secondary education, and his experience as an accounts coordinator, estimator and photographer qualified him for a "host of employments" that he might carry out without substantial re-training.
The Arbitrator did not agree with State Farm's assertion. Although Mr. Florek may indeed possess high average to above average intellect, some post-secondary schooling and experience garnered over years of employment, these qualities must be considered in conjunction with the mental and physical impairments he now suffers as a result of the accident. State Farm has also failed to consider that Mr. Florek's two years of computer science training from the mid-1980's are obsolete. Based on the medical evidence already considered, the Arbitrator found that Mr. Florek simply cannot perform adequately and competitively to current standards in any employment for which he might be reasonably suitable by education, training and experience. Nor did the Arbitrator find it reasonable that he retrain to achieve employment in any such fields.
The Arbitrator found that Mr. Florek suffers from a complete disability to perform any employment for which he is reasonably suited by education, training or experience. Mr. Florek is entitled to further IRBs of $400 per week from March 25, 2008 and ongoing.