Neutral Citation: 1991 ONICDRG 10

File No. A-000134

ONTARIO INSURANCE COMMISSION

BETWEEN:

RONALD GATT

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

DECISION

Issue:

The Applicant, Ronald Gatt, was injured in an motor vehicle accident on December 9, 1990. He was insured under an automobile owner's standard insurance policy issued by the Insurer. Every motor vehicle liability policy provides for the no-fault benefits set out in Ontario Regulation 273/90, ("the No-Fault Benefits Schedule"), and enacted under the Insurance Act, R.S.O. 1990, c. I.8, ("the Act").

The Applicant applied for and received weekly income benefits under the policy, until January 12, 1991. At that time, the Insurer terminated benefits, on the basis that the Applicant was not disabled to the extent required under the No-Fault Benefits Schedule. Mediation was unsuccessful in respect of this issue, and the Applicant subsequently applied for the appointment of an arbitrator under Section 242d of the Act.

The issue to be determined in this arbitration is:

Is the Applicant entitled to weekly income benefits from January 12, 1991 to approximately the end of March, 1991 as a result of the injuries he sustained in the accident?

The Applicant also claims interest upon any amounts found to be owing.

Result:

The decision is:

1. The Applicant suffered substantial inability to perform the essential tasks of his employment for the period from January 12, 1991, when benefits were terminated, to March 17, 1991. He is therefore entitled to weekly income benefits for this period.

2. The Applicant is entitled to interest in respect of these amounts.

Hearing:

An arbitration hearing was conducted at North York on October 22, 1991, before me, Susan Naylor, Arbitrator. Present at the hearing were:

The Applicant:

Ronald Gatt

The Insurer Represented by:

William Adam Claims Manager Coachman Insurance Company

The Applicant testified at the hearing.

Documents before the Arbitrator

Exhibits:

Exhibit 1:

Medical or Psychological Report, Form 4, from Dr. Albert Wong, M.D., dated December 22, 1990.

Exhibit 2:

Medical or Psychological Report, Form 4, from Dr. William S. Yeh, M.D., dated January 17, 1991.

Exhibit 3:

Medical or Psychological Report, Form 4, from Dr. William S. Yeh, M.D., dated February 27, 1991.

Exhibit 4:

Medical or Psychological Report, Form 4, from Dr. Michael C. Hall, M.D., Ph.D, F.R.C.S.(C)

Exhibit 5:

Note from Dr. William S. Yeh, M.D., dated September 20, 1991

Documents before the Arbitrator, but not marked as exhibits:

• Application for Appointment of an Arbitrator, filed on July 10, 1991

• Response of Insurer, filed on July 19, 1991

• Report of Mediator, dated May 16, 1991

Evidence

The automobile accident occurred on December 9, 1990. Shortly beforehand, the Applicant had been laid off from his job for an indefinite period.

The Applicant testified that the accident involved a three-car collision, when a car turning left in front collided with his car. His wife and mother-in-law were in the car at the time of the accident. They were slightly injured in the collision and went to hospital. The Applicant said that at the time he did not feel any pain because he was "too mad" about the accident. He waited for the accident scene to clear, and then went to the hospital to collect his relatives. At the hospital, he began to feel pain in his neck and his back. He could not turn his neck. He felt weak and in shock. He was told he had a muscle pull and should take some pills.

On the following Monday, he went to see his family doctor, Dr. William Yeh, because his shoulder was hurting him. Dr. Yeh also said he had pulled a muscle, and gave him some pills. A week later, the Applicant returned to see the doctor. His muscles were aching and his neck hurt. He stated that at that time his back was not too bad, but if he lifted something, it would hurt. He was seen by Dr. Albert Wong, who was substituting for Dr. Yeh.

Exhibit 1 is Dr. Wong's medical report of that visit, which was filed when the Applicant applied for no-fault benefits. The report indicates that the Applicant had suffered a muscle strain, and that the expected duration of disability would be approximately one month.

On January 10, the Insurer sent the Applicant to see Dr. Hall, an orthopaedic surgeon. Dr. Hall examined the Applicant and concluded that he was fit for work as an assembler. His report is Exhibit 4. The report states that the Applicant's soft tissue injury would resolve totally in time, and that the Applicant was not presently in need of treatment or likely to be in need of future treatment.

As a result of this report, the Insurer terminated benefits.

On January 17, 1991, a week later, the Applicant went back to Dr. Yeh. He said that he was feeling pain in his back. Dr. Yeh examined him, and ordered some x-rays. The x-rays were normal.

Dr. Yeh's findings (Exhibit 2) were that the Applicant had sprained his left lumbar area and right shoulder, and suffered from post-traumatic headaches. The report indicates that further visits were planned, and that the Applicant would likely return to work in one month. Analgesic and anti-inflammatory medication was prescribed, and a plan of physiotherapy treatment indicated.

Exhibit 3 is a further report from Dr. Yeh. Dr. Yeh saw the Applicant on February 27, 1991. The report confirms Dr. Yeh's previous findings. It indicates that "the patient will be attending physiotherapy for the next two weeks, then should be able to return to work on March 18, 1991".

According to the testimony of the Applicant, he attended physiotherapy treatment on three occasions. However, there appears to have been some dispute with the Insurer regarding payment for the treatment, and the Applicant said he did not go after the third time.

Dr. Yeh provided a brief note (Exhibit 5) for the purposes of the hearing. The note stated that the Applicant was "totally disabled to work from December 22, 1990 to March 17, 1991," and that the doctor had referred the Applicant for physiotherapy treatment on February 27, 1991. No further details are provided. The cursory nature of this report is unhelpful and adds nothing to the medical reports previously filed.

Before the accident, the Applicant was an assembler with a manufacturer of transmission coolers. He testified that his job involved dealing with small components on the assembly line, finishing the product. His work was not heavy; however, it required him to move quickly and to twist from side to side. He had to stand for most of the time. He worked on a rotational basis as a helper on one of three furnaces in the plant. This was much heavier work.

The Applicant testified that he could not do his job as an assembler because of his sore shoulder and back. The work place was very noisy and he had headaches as a result of the accident. His back pain precluded him from the heavy lifting.

Shortly prior to the accident, the Applicant had been indefinitely laid-off. He testified that he was offered a different position at the plant shortly after the accident, but did not take it because of the accident. He said that, in any event, the job was a different one and he wanted to wait for his old job.

The Applicant testified that he did not plan on staying with his employer on a permanent basis in any event, because of all the redundancies. He said that he started looking for work after the lay-off, although he is not too sure about dates. He thought it was around the end of February and named several employers he had applied to. According to his testimony, he had been trying to get a job with the Toronto Transit Commission ("T.T.C.") for some time and had applied there a number of times before the accident. Through his contacts, he knew that his prospects of being hired there were better than before, and that the T.T.C. was going to need people in April. It was "perfect timing to get it". He applied again at the T.T.C. in March. He testified that he was not fit to return to work when he applied, and knew he would not be available for work immediately. However, the T.T.C. has a long lead-time for applications, so he did not need to be immediately available. He testified that he told the T.T.C. he was fit for work at the end of March.

The Applicant's employer recalled him in March. However, the Applicant decided not to return to his old job because he wanted to wait for employment with the T.T.C. He was hired by the T.T.C. in mid-April and works for them as an elevator mechanic. He acknowledged that this job involves heavier labour than his previous job.

On cross-examination, the Applicant was asked whether he would have accepted work, had he been offered it earlier. He said that he would have gone for a job in the circumstances, although he was not in fact fit to return to work. He had to eat and pay the rent.

Submissions:

The Applicant stated that he was unfit to return to work until approximately the end of March. Although he had indicated that he wanted benefits for just another month following termination in his application for arbitration, he only asked for this to settle the case in mediation. He argued that it was speculation whether he would have worked hurt or not had there had been work available, because his employer had no light duties for him.

The representative of the Insurer argued that the Applicant would likely have continued work if he had not been laid off, notwithstanding the accident. He compared the quality of the medical reports that were filed by Dr. Wong and Dr. Yeh with that of Dr. Hall. He drew attention to the cursory nature of the final medical report from Dr. Yeh, and argued that the Applicant's doctors were not objective in their assessments.

Findings:

Entitlement to weekly income benefits is governed by the provisions of Section 12 of the No-Fault Benefits Schedule. The relevant subsection provides as follows:

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

The sole issue in this arbitration is whether the Applicant was disabled from his employment to the extent required under this subsection for the period claimed.

The evidence of the Applicant indicates that his job as an assembler was not heavy, but it involved standing, rapid movement, and twisting motions. To the extent that he was required to assist with the furnace, his work involved heavy labour. The Applicant's testimony is that, as a result of his injuries, he could not do these essential tasks.

The medical reports filed by Dr. Wong and Dr. Yeh support this. These reports indicate that the Applicant's injuries disabled him from work. The last of these reports - that of Dr. Yeh of February 27, 1991, (Exhibit 3) indicates that the Applicant would be able to return to work in mid-March, following physiotherapy treatment.

However, the report of Dr. Hall (Exhibit 4) indicates that the Applicant was ready to return to work as of January 10, 1991. Dr. Hall is an orthopaedic specialist with extensive qualifications and experience. However, in this case, I prefer the evidence of the Applicant's own family physician for the following reasons:

Dr. Yeh had the opportunity of examining the Applicant on an ongoing basis, as his family physician. The evidence is that Dr. Yeh saw the Applicant on at least three occasions, - immediately after the accident on December 10, 1990, on January 17, 1991 and again on February 27, 1991. (In fact, the reports filed indicate that further visits were planned. However, there is no evidence whether these other visits took place.)

Dr. Yeh therefore was in the best position to monitor and evaluate the condition of the Applicant on an ongoing basis. Dr. Hall, on the other hand, saw the Applicant once in mid-January.

Dr. Hall's report indicates that the Applicant had not seen any other doctors or sought any other treatment except the two prior visits to Dr. Wong and Dr. Yeh. He concluded that the Applicant was not presently in need of treatment and not likely to be in need of treatment in the future.

However, the evidence is that the Applicant in fact sought medical attention for his complaints until the end of February. Following his visit to Dr. Hall, the Applicant saw Dr. Yeh at least twice for essentially the same complaints, and received medication and physiotherapy treatment on the recommendation of his doctor.

Dr. Yeh's reports support the ongoing nature of the Applicant's complaints, the continued requirement for medical supervision, and the need for physiotherapy treatment. While these factors do not of themselves establish that the Applicant was disabled, Dr. Yeh specifically addresses himself to that issue, and in his final report of February 27, 1991, states that the Applicant should be fit to return to work on March 18, 1991.

The Applicant had been laid off immediately prior to the accident. He freely acknowledged that he was looking for work during the period of disability claimed, at least from the end of February. Furthermore, he had a long-standing interest in working for the T.T.C. and sometime in March turned down an opportunity to return to work with his employer in order to wait for a job with the T.T.C. He started working for that employer in mid-April at a job that involved admittedly heavier duties than his former employment. Furthermore, he testified that had he been offered a job at an earlier time, he would have taken it, notwithstanding that he was not fit for work at that time.

The Applicant represented himself. There are a number of deficiencies in the specifics of the evidence before me, in particular, details of the dates of applications for work and offers of employment. However, I found the Applicant to be a forthright and candid witness. In the absence of better evidence, I find that the Applicant could have returned to work some time between the end of February and the middle of March. It may be that he could have gone back to work earlier, had work been available. His own evidence is that he would have accepted a job, although that he was not fit for work at that time. However, in my view, what would have happened had a job been available is speculative, and the Applicant's testimony may be taken as no more than an expression of his strong motivation to return to work, notwithstanding the effect of his injuries.

The best evidence is that of the Applicant's own doctor who saw him on an ongoing basis and stated that he would be able to return to work on March 18, 1991. There is no evidence to support a finding of disability beyond this date.

Order:

The order is:

1. The Applicant is entitled to weekly income benefits from January 12, 1991 to March 17, 1991.

2. The Applicant is entitled to interest in respect of these amounts.

Susan Naylor

Arbitrator

Date