December 31, 2009
Bogoroch & Associates represented Terry Matton, who was injured in a motor vehicle accident in October, 2003. He applied for and received statutory accident benefits from Insurance Corporation of British Columbia (“ICBC”). In July 2008, the parties were unable to resolve their disputes through mediation, and Mr. Matton applied for arbitration at the Financial Services Commission of Ontario.
|Heard:||December 2, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.|
|Appearances:||Bogoroch & Associates for Mr. Matton
Sandi J. Smith for Insurance Corporation of British Columbia
The Applicant, Terry Matton, was injured in a motor vehicle accident on October 31, 2003. He applied for and received statutory accident benefits from Insurance Corporation of British Columbia (“ICBC”), payable under the Schedule.2 On or about May 8, 2007, ICBC terminated weekly income replacement benefits. On July 22, 2008, the parties participated in mediation but could not resolve their disputes, and in October 2008, Mr. Matton applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The Relevant Facts
As a result of this accident, Mr. Matton sustained, among other injuries, a serious fracture to his right femoral shaft. The parties acknowledge that the fracture did not heal in the usual course. It took a long time to heal solidly and was treated with an intramedullary rod. By May 2005, some 19 months after the accident, x-rays confirmed that the main fracture had healed. In March 2006, however, Mr. Matton continued to complain of intermittent pain in his right hip and buttock area. Examination revealed a full range of motion. Despite objective indicia that the fracture had healed, Mr. Matton continued to complain of ongoing pain. Dr. David Harding, Mr. Matton’s treating orthopaedic surgeon, and Dr. Stanislaw Tubin, another orthopaedic surgeon who had examined Mr. Matton, each suggested that Mr. Matton’s pain and discomfort might resolve if the intramedullary rod were removed.
The rod was removed in June 2006. In September 2006 Mr. Matton’s family doctor, Dr. Donald Davies, reported that Mr. Matton’s pain was worse than ever. On examination, Dr. Davies could not demonstrate any swelling and reported good range of motion in the hip. He requested an opinion for pain management and expressed concern as to Mr. Matton’s reliability with narcotics. Dr. Davies also expressed hesitation to increase Mr. Matton’s narcotics dose feeling it would not help the situation.
On March 8, 2007, Dr. Davies completed a disability certificate in which he noted the right femur fracture and pain. He recommended further orthopaedic assessments, and wrote that it was unknown whether Mr. Matton could return to work, even if on modified hours or duties. He suggested that Mr. Matton needed to be reassessed by specialists, and that Mr. Matton complained of “chronic pain” and an inability to work despite a healed fracture and a removed pin. According to the disability certificate, Dr. Davies noted that he had referred Mr. Matton to a chronic pain specialist in September 2006 but that he was still waiting for an appointment. He concluded the certificate with the question, “?why is [Mr. Matton] so disabled??” [sic]
In April 2007, at ICBC’s request, Dr. T.H. Wallace conducted another orthopaedic assessment, considering Mr. Matton’s ongoing low back, left knee and right leg complaints. Based on that assessment, on or about May 8, 2007, ICBC terminated Mr. Matton’s benefits.
In all, Mr. Matton attended numerous assessments at ICBC’s request including a functional capacity assessment, a transferable skills assessment, an in-home functional reassessment, a functional abilities evaluation, orthopaedic examinations, and a vocational evaluation assessment. Among the assessments was a psycho-vocational assessment with a psychologist, Dr. Jeffrey Phillips, in September 2005. Dr. Phillips found that Mr. Matton had low cognitive function, weak verbal and reasoning skills, was not an appropriate candidate for formal education and did not have significant potential to upgrade his skills beyond the observed levels. He reported that Mr. Matton’s potential was severely limited due to physical injury, intellectual limitations and functional illiteracy.
Mr. Matton has a long history of prior accidents. A Temiskaming Hospital Record from September 2000 indicates a prior history of thirteen accidents in total. Included in the history was the suggestion, as far back as 1998, that Mr. Matton ought to be on some low dose anti-depressants.3
For the full decision, click to download: Terry Matton v. Insurance Corporation of British Columbia – Reasons for Decision on a Motion