The Applicant was questioned on a number of statements in Dr. Karabatsos’ report and she did not disagree with the range of motion in her back that he noted. She testified that she can move her neck but she has pain. She is able to bend and move her back but she has pain. She did not mention her anxiety and sleep difficulties to Dr. Karabatsos. He had misstated the extent of her functioning on a day-to-day basis including elements that she testified she could not in fact do. He agreed that he knew she was on modified duties at work at the time of the assessment but chose not to include that in his report, “a simple omission on our part”.
Dr. Karabatsos did acknowledge in cross-examination that some people take longer to recover than others and some can develop chronic pain. He testified under cross-examination that older people will take longer to recover and that pre-existing conditions can affect recovery time if the injury is to the joint itself. The severity of the impact of the accident may also play a role and in this case he viewed the accident impact as moderate. Further, he is familiar with chronic pain as persistent pain and to satisfy a chronic pain diagnosis there must be significant psychological sequelae. In his experience such patients are reliant on significant medications and treatment and tend to become socially withdrawn.
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I do not accept the evidence of Dr. Karabatsos in this matter. He specializes in lower extremities reconstruction and general orthopaedics according to his qualifications set out in his report. He gave too little weight and regard to the fact that at the time of her assessment she was in the midst of regular treatment that provided relief from her symptoms and under prescription medication that would, if it were effective, give her relief from inflammation and pain allowing her to move more easily. He appears to have ignored her pain complaints, that she was taking medication that would impact both her movement and her pain level, and that her functioning was compromised, i.e. he omitted to include in his report that she was on modified work duties. He testified that in his practice his patients post-surgery have a follow-up appointment with him and a physiotherapist who instructs them on exercises to do at home and “they all get better”, an outcome many accident victims only dream of.
Also he did not have a full documentary record. In September 2014, he assessed the Applicant about a week after the disability certificate was signed but this document was not provided to him; he was given only the Application for Accident Benefits dated August 14, 2014 and the disputed OCF-18. He did not have and apparently was never given the clinical notes and records of the Applicant’s family doctor, all of which dating back to 2010 have now been made available together with imaging results. At the time of Dr. Karabatsos’ assessment the Applicant was only seven weeks post-accident and had had only seven treatments which had started August 5, 2014. She was therefore within Block 2 of the treatment under the MIG (Section 8(ii)). The MIG contemplates that only if the insured person has achieved maximal recovery at the end of eight weeks is treatment to be stopped. Therefore, even if the injuries fall within the MIG, the Applicant was entitled as of right to at least two more weeks of treatment under Block 2 or the full 12 weeks or 3 blocks of treatment, whereas Dr. Karabatsos seems to be of the view that even at this stage, and despite her experiencing pain in the test for range of motion, she has had “extensive” or enough treatment.
Further, while the answers to the questions at the conclusion of his report are given without qualification, in the body of his report, Dr. Karabatsos is careful to note the limitation of his expertise and to confine himself to testing the neck, upper and lower extremities and spine. He opines only on the neck, back and shoulder injuries. He was well aware that she suffered other injuries. He failed to address the hand tremor which she said was made worse by the accident and pain in the temporal mandibular joint and headaches in stating his opinion on the MIG. He did not even flag these as areas that might well be investigated by someone with the expertise to do so before Aviva drew a conclusion as to the nature of her injuries or her ability to recover under the MIG course of treatment.