Neutral Citation: 1992 ONICDRG 20

File No. A-000193

ONTARIO INSURANCE COMMISSION

BETWEEN:

ROGER G. KNAPP

Applicant

and

METROPOLITAN INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Roger Gunnar Knapp, was injured in a motor vehicle accident on October 12, 1990. He applied for and received personal injury benefits payable under Regulation 273/90 under the Ontario Insurance Act, R.S.O. 1990, c. I.8, (the "No-Fault Benefits Schedule").

The Applicant is self-employed in a duct cleaning business.

He received weekly income benefits until May 10, 1991. The Applicant claimed that his benefits were wrongfully terminated and that he was entitled to ongoing weekly income benefits until September 30, 1991.

The Applicant applied for mediation of his dispute with the Insurer. The mediation was unsuccessful, and the Applicant subsequently applied for the appointment of an arbitrator.

The issue to be determined at the arbitration hearing was:

Is the Applicant entitled to weekly income benefits from May 10, 1991 to September 30, 1991?

The Applicant also claims benefits after September 30, 1991, when he returned to work part time. The Applicant also claims interest on any benefits found to be owing and his expenses in participating in the arbitration.

Result:

The decision is:

The Applicant is entitled to weekly income benefits from May 10, 1991 to September 30, 1991.

I have no jurisdiction to rule on the issue of benefits payable after September 30, 1991.

Hearing:

A hearing was held at North York, Ontario on November 4, 1991, resumed in Hamilton, Ontario on December 5, 1991, and resumed in North York on January 21, 1992, before me, Frederika M. Rotter, Senior Arbitrator.

Present at the hearing were:

Applicant:

Roger Gunnar Knapp

Insurer's

Lee Samis

Representative:

Barrister & Solicitor

Witnesses:

Dr. Peter Bloch

General Practitioner

Dr. Gabriel Jeremias

Orthopaedic Surgeon

Claudia Stampone

Private Investigator

Documents before the Arbitrator:

Report of Mediator, received May 17, 1991

Application for Appointment of an Arbitrator in Form 4, received July 16, 1991

Response in Form 5, received August 6, 1991

Exhibits:

Exhibit 1

Letter from Dr. Bloch, dated October 28, 1991

Exhibit 2

Photograph showing damage to Applicant's car

Exhibit 3

Report of Dr. Jeremias, dated April 28, 1991

Exhibit 4

Letter from Dr. Bloch, dated August 12, 1991 (3 attachments)

Exhibit 5

Letter from Samis, Blouin, Dunn to Applicant, dated October 30, 1991

Exhibits 6, 7, 8 & 9

Medical Reports from Dr. Bloch, dated October 30, 1990, November 14, 1991, December 21, 1990 and April 1, 1991, respectively.

Exhibit 10

Report from Dr. Jeremias, dated January 11, 1991

Exhibit 11

Report from Dr. Bloch, dated February 4, 1991

Exhibit 12

Report from Dr. Jeremias, dated April 28, 1991

Exhibit 13

Report from Dr. Bloch, dated June 10, 1991

Exhibit 14

Report from Dr. Jeremias, dated June 24, 1991

Exhibit 15

Letter from Dr. Moore, dated July 4, 1991

Exhibit 16

Photographs re April 18, 1991

Exhibit 17

Photographs re motor scooter

Exhibit 18

Videotape, dated April 29, 1991

Exhibit 19

Videotape, dated June 27 & 28, 1991

Exhibit 20

Videotape, dated September 3, 1991

Exhibit 21

Videotape, dated September 27, 1991

Exhibit 22

Letter from Dr. Naumetz, dated September 27, 1991

Exhibit 23

Emergency Report, dated October 12, 1990

Exhibit 24

Notes of Dr. Bloch

Exhibit 25

Curriculum Vitae, Dr. Jeremias

Evidence:

The Applicant testified that prior to the accident of October 12, 1990 he had no previous illness or disability and was very healthy and fit. He did many physical and sporting activities, such as playing golf and refereeing hockey.

The accident occurred on October 12, 1990 at 10:30 in the morning. The Applicant was travelling in his car when he was hit on the driver's side by an oncoming red Toyota which had lost control. The Applicant was travelling at approximately 30 kilometres an hour and his vehicle spun 180° on the impact. He lost consciousness. When he came to, he was covered in glass and people were all around him. His vehicle was pointing in the opposite direction that he had been travelling. The car door had to be pried open, as it was pinning down his left leg. The Applicant believes that the person who hit him was charged and convicted. The vehicle which hit him was so badly damaged that its body had to be cut in half.

The Applicant testified that when he regained consciousness he was in a state of shock. His left leg was numb and he was shaking so much that he could not even sign his name. The Applicant found his glasses in the rear seat of his car. An hour after the accident, his wife drove him to hospital. He testified that he saw Dr. Bloch, his family doctor, later the same day.

The Applicant testified that Dr. Bloch had been his family doctor since 1978. Prior to the accident, he had seen Dr. Bloch perhaps three or four times, for minor complaints. He has seen Dr. Bloch regularly since the accident.

The Applicant testified that right after the accident, he started to experience lower back pain and pain in his left leg. He started having neck pain about two weeks later. At that time, Dr. Bloch estimated that he would be back at work in two to four weeks.

The Applicant testified that he has not been free from pain since the accident. He experiences discomfort sitting for any length of time. His neck and lower back still hurt.

The Applicant testified that he also experienced numbness of the left leg. The numbness started shortly after the accident, and is periodic. The Applicant described the numbness as starting with a very sharp pain behind the knee. The Applicant has also experienced total numbness of the left arm.

The Applicant confirmed that he saw Dr. Bloch on November 14, 1990, and he complained of low back pain and numbness in his left leg. Dr. Bloch's notes for that day (Exhibit 24) indicate that the Applicant was making some progress with respect to his numbness.

The Applicant confirmed that on November 14, 1990 Dr. Bloch indicated that the Applicant could return to work in January 1991. The Applicant testified that the doctor was hoping that he would be able to return to work, but he did not say definitely that he could. The Applicant testified that the extent of his injury was not understood at that time.

The Applicant did not try to work again until May 27, 1991. He attempted to work for two days, but found he was not able to carry on. He did not return to work again until the end of September 1991, when he started working on a part-time basis.

The Applicant testified that he had a CT scan at the end of July 1991 and it revealed that he has a bulging disk at L4-5. The Applicant indicated that he does not know if the disk is the cause of his problem. To date none of the medical experts have been able help him. The Applicant testified that his family physician referred him to Dr. Naumetz, an orthopaedic surgeon, who advised that his injuries would take time to heal. Dr. Naumetz recommended that the Applicant try to return to work part-time, and avoid physical exertion. Dr. Naumetz indicated that it could take one to two years before he recovered fully.

The Applicant testified that chiropractic treatments alleviate the numbness and pain, on a temporary basis. The Applicant's chiropractor, Dr. Moore, considers that he cannot yet return to work. The Applicant filed a letter from his chiropractor dated July 4, 1991 (Exhibit 15) and indicated that he was advised that the chiropractor would be called by the Insurer to testify at the hearing. The Applicant testified that he still sees the chiropractor once or twice a week. He was not sure when he started seeing the chiropractor. He had never seen a chiropractor prior to his accident.

The Applicant testified that he saw the Insurer's independent medical examiner, Dr. Jeremias, on two occasions. Dr. Jeremias recommended that he exercise and swim, but did not specifically recommend that he return to work.

The Applicant referred to Exhibit 3, the report of Dr. Jeremias dated April 18, 1991, which indicates that he did not complain of any tenderness. The Applicant stated that he has a great deal of tenderness in his neck and lower back. The Applicant referred to Dr. Jeremias' comment that he was unwilling to come to terms with his "minimal discomfort". The Applicant stated that Dr. Jeremias is not living in his body, and that his body is telling him that he is in a great deal of pain.

The Applicant testified that he has diligently pursued all the therapy recommended for him. As of the date of the hearing, he had still not recovered to the condition than he was in prior to the accident. His condition is aggravated if he does not rest at home in the afternoon. He experiences discomfort and pain every day. Physical exertion causes him constant pain.

The Applicant testified that his sleep is erratic. Sometimes he goes to bed at 7:00 p.m. or 8:00 p.m. because he has difficulty getting a full, uninterrupted night's sleep.

He takes a pill to help him relax when he goes to bed. He also takes 222's for pain, but no other painkillers. He exercises on a regular basis and walks a great deal.

He perspires profusely at the slightest exertion. He recently tried to cut some thin sheet metal plates, but after half an hour, he was perspiring so much that he could not continue. He perspires so much that he cannot enter a building to inspect it because he drips all over. The Applicant testified that he has ruined three pillows from perspiration. Normally he puts a bath towel on his pillow, and when he wakes up in the morning, the towel is soaked.

The Applicant testified that since the end of September 1991 he has been trying to work at his business two to four hours a day. He has tried to do some physical work, but found it too difficult. His family doctor has said he cannot return to his full job.

He currently can sit in the car for about two hours. Previously, he could not even stay in the car for that long. Sitting in one position is still very painful for him. He finds it difficult to sit in the car with his seat-belt on, but will not sit in the car without the seat-belt because it saved his life.

The Applicant explained that he is in the duct cleaning business, working on both commercial and residential buildings. He owns the business and has approximately 30 employees. He testified that prior to the accident 90 per cent of his job entailed physical work. Some of the work was difficult even when he was healthy. A large part of his job entailed maintenance work on his trucks. He cannot now do this work as it involves lifting, twisting and bending.

The Applicant owns three 14 foot cube vans, which he uses for his duct-cleaning business. The back of these trucks houses a 2,000 pound vacuum system powered by a Chevette engine. A series of pulleys are connected to a main fan. The bearings on the pulleys often wear out. The belts break and the vehicles themselves require tuning. In order to change the bearings on the main fan, a 20 inch pulley which weighs about 30 pounds must be removed.

The shaft of the fan weighs about 110 pounds. It holds a fan which weighs approximately 400 pounds. It therefore takes a great deal of physical exertion to remove the pulley, brace up the shaft and remove and change the bearings. The Applicant testified that he used to do this maintenance work himself, and that he regularly used to change a series of four or five other bearings as well. To replace bearings used to cost him only $60.00 for parts, but now it costs him $300.00 for a mechanic to do the entire job.

The Applicant testified that he also used to do oil changes and other normal maintenance work on his vehicles, as needed. He explained that the vehicles operate 12 hours a day, six days a week. Each vehicle requires maintenance once or twice a month. The engines powering the vacuum system are mounted free-standing on a special stand. To manoeuvre the engines requires a great deal of bending and twisting. The room to move is very limited. The Applicant testified that he can no longer do his previous maintenance functions, and must pay a mechanic for this work. He does not keep a mechanic on his staff.

The Applicant testified that he frequently used to install air cleaners, which involves lifting and twisting. The plenum or front area of the furnace must be cut, and tracks to house the air cleaner must be installed. This sometimes requires dismantling the cold air plenum from the roof down to the furnace. It is quite heavy work requiring physical exertion.

Actually installing the air cleaner involves pulling an 8 inch flake hose, about 25 feet long, from the truck, and dragging it into either a commercial or residential building. Once inside the building, the worker must cut a hole into the plenum with tin-snips. Then the hose must be lifted into the hole and attached to the plenum using screws on a steel flange. The hose must be held with one hand as the worker drills with the other hand to fasten the hose to the plenum. Once the hose is connected to the plenum, the entire front of the furnace must be dismantled, which takes physical ability and strength. While the cleaning system is operating, the worker must agitate the plenum by banging and reaching over his head with a rubber mallet. When the cleaning is done, the entire job must be reversed, and the equipment packed up and moved to the next job.

The Applicant testified that the cleaning procedure takes an experienced worker about one and a half hours on an average home. His business schedules six jobs a day per vehicle. In some homes and businesses, the worker is obliged to crawl into an area three or four feet high and do much of the work lying down.

The Applicant testified that six employees do the actual duct cleaning work: two people on a crew for each of his three trucks. He used to work on the cleaning crews if a driver/operator was not available. He testified that he often did this two or three days a week. He also used to do many commercial jobs on Sundays, as a way of saving on labour.

The Applicant testified that the business utilizes numbers of 10" x 10" plates which are purchased from heating and air conditioning companies. The plates are bundled in lots of 50 or 100. The Applicant testified that currently he cannot carry a bundle of 50 plates. Prior to the accident, he was easily able to carry about 200 pounds.

The Applicant confirmed that on his claim form applying for weekly income benefits, he described his job as follows:

(1) Sales: taking people out and training them to do sales

(2) Inspections: this means inspections of commercial jobs

(3) Filter installations

(4) Driver/operator: the actual job of duct cleaning.

He testified that he filled out the employer's confirmation of employment form himself since he is self-employed. On that form, his job description was:

(1) Training sales people

(2) Training technicians

(3) Installing electronic filters

(4) Changing and repairing engine shocks and bearings

He testified that when he filled out the forms he did not think that he would be required to itemize in detail everything that he could and could not do. He understood that the doctor's report would explain why he was disabled and could not perform his job duties.

The Applicant testified that prior to the accident, only he and the general manager estimated commercial jobs. In almost all cases, this entailed climbing ladders to the roof, and taking the sides off the roof unit to ascertain what was required to rectify it. In many cases, one literally had to get inside a roof unit to ascertain the extent of the work required. The Applicant testified that he now finds it impossible to do commercial estimates, as the job requires too much physical exertion.

Prior to the accident, the Applicant normally trained his sales staff and would sometimes go out with them. He did lots of driving and would get in and out of his vehicle all day. Since the end of September 1991, he has gone out with some of his salesmen to assist with sales, but he does not participate in the physical or inspection part of the job.

He confirmed that he is physically able to drive, although it is hard for him to drive for a lengthy period. He finds it is difficult to get out of the left-hand side of the car, and turning left also causes him problems. He sits on the right side if possible, when he goes with someone who drives.

The Applicant testified that prior to the accident he did very little clerical work. His office staff normally took care of the clerical functions, and he did mostly physical work. Twelve to 16 workers are employed in the office, including telemarketers and other office staff. He now tries to help out in the office as he can no longer do his former physical tasks. He currently does bank deposits, which the office manager used to do, and other clerical duties such as answering the telephone, and setting up appointments.

He confirmed on cross-examination that he is currently going into work, but how much he can do varies from day to day. When he has had enough discomfort, he goes home.

The Applicant was shown surveillance videotapes taken on April 29, 1991, June 27 and 28, 1991, September 3 and September 27, 1991 (Exhibits 18, 19, 20 and 21).

He confirmed that he was truly depicted on the tapes. He commented that, although the tapes showed that he was involved in some activities on behalf of his business, it was not enough work to justify being paid. He did not consider that the activities depicted were work: he just did them as favours.

He testified that after the end of September, when he went back to work on an official basis, he actually went out on a few calls with his sales staff and did office work. He has tried to work about half a day, but still cannot do his former jobs. He feels it will be some time before he can work as before.

Dr. Peter Bloch gave viva voce evidence on behalf of the Applicant. He is a general practitioner who graduated from the University of Western Ontario in 1974. He has had a full-time general medical practice in Oakville since 1976.

The physician testified that he has known the Applicant since 1981. He saw the Applicant between 1981 and 1990 for regular examinations and for minor ailments. The Applicant's general health prior to his accident was excellent. There was no evidence that the Applicant suffered from any musculoskeletal problems in the area of his neck and back, and no history of significant injury or pre-existing disease for the preceding ten years.

The physician testified that he first saw the Applicant following the motor vehicle accident on October 15, 1990. He had been seen at the hospital on the day of the accident and attended at Dr. Bloch's for follow up. During the initial visit, the Applicant indicated that he had been involved in a motor vehicle accident on October 12, and had been side-swiped by a car which crossed the meridian from the other side.

The emergency room report following the accident documented that the Applicant suffered from injuries mostly related to his left leg. The report did not refer to problems with the Applicant's neck or back. X-rays were taken of the Applicant's left leg. The Applicant mentioned that he had been advised to take some muscle relaxant and painkiller medications. He stated that he suffered from twinges of pain in his neck and low back area, and also had discomfort over the left lateral thigh area. The physician confirmed that his notes (Exhibit 24) referred to the Applicant's "slight discomfort" in the lateral thigh area.

The physician testified that during the examination on October 15, 1990 he found tenderness of the cervical spine around C7. The Applicant had a good range of motion except on lateral flexion: going side to side could only be done to 45 degrees. The Applicant had tenderness across the upper portion of the lumbar spine, but was pain-free at that time. He had good movement of his left hip and knee. The physician's impression was that the Applicant had suffered minor cervical, lumbar and sacral sprain. He did not appear to be visibly distressed. He had suffered some contusions, and was advised to stay off work until his injuries resolved.

The physician testified that at that time he felt that the Applicant's injuries would resolve in a number of days. He wished to review the Applicant's condition in two weeks' time.

The Applicant re-attended at his office on October 29, 1990. He reported he was suffering more pain so the physician ordered x-rays and a review for physiotherapy. On October 29th, the Applicant's pain appeared to be more significant than originally reported. The physician found tenderness throughout the Applicant's lumbosacral spine. He had a fair range of movement but reported discomfort linked to lateral flexion and rotation. The physician changed the Applicant's medications and asked him to return in 48 hours.

The physician saw the Applicant again on October 31, 1990. He was much better at that time, but reported discomfort when standing.

The physician testified that often people involved in motor vehicle accidents take longer than expected to recover from apparently minor injuries. Sometimes minor injuries produce significant disability and it is not known why.

The physician testified that initially he had hoped that the Applicant would recover from his injuries in a few days, but he stressed that it is impossible to predict how long it will actually take a patient to recover. He indicated that during the Applicant's first three visits he had not directed his mind to issues of disability since, at that time, it was not a major issue. The physician was aware that the Applicant was unwell and required ongoing medical care. The physician filled out the claim form on October 30th and he expected that the Applicant would be disabled from two to four weeks.

However, on November 14th, his next visit, the Applicant was still experiencing discomfort and was sent to physiotherapy. He had not been taking his Naprosyn regularly. The physician confirmed that on November 14th he completed the Applicant's disability claim form and noted that the Applicant had not returned to work because his work involved standing and reaching over, activities which made his back worse. The physician could not recollect whether he had completely recorded the Applicant's description of his job duties on that date.

The x-rays done on October 29, 1990 showed degenerative changes between L4 and 5, and L5 and S1.

The Applicant suffered from mild degenerative disk disease, although he denied any previous back discomfort. The physician confirmed that the degenerative disk disease might have existed before the accident, but was probably of no great significance. On November 14th, the physician predicted that the Applicant could return to work in January 1991. The Applicant was not progressing as expected, and at that time he felt he could not perform his job functions.

On November 29th, the Applicant reported with the same problems. On December 21, 1991, the Applicant reported that he was suffering pain in his thigh and that he had discontinued the physiotherapy. He was doing his home exercises. The physician instructed the Applicant to return to physiotherapy.

On December 21st, the physician completed more medical claim forms which described the Applicant's back pain as intermittent. He was also then suffering from a left lateral thigh ache. The period of disability was extended to February 1991 on the basis of the Applicant's ongoing report of pain and his ongoing complaints of tenderness and discomfort on examination.

The physician testified that he saw the Applicant on January 14, 1991 and noted that the Applicant had good range of movement with minimal discomfort in extension.

The Applicant did not improve as the physician had expected. He developed new symptoms as time went by. In January 1991, he was experiencing discomfort in his left foot and his left lateral thigh area. The Applicant re-started physiotherapy as he was showing no improvement with the anti-inflammatory medication. He was reluctant to take analgesic medications. He complained of significant discomfort from sitting for a prolonged period or doing movement. He also had difficulty standing and reaching over.

The Applicant had a number of physiotherapy treatments. Initially, he made some progress, but then the exercises seemed to aggravate his condition. The Applicant also started seeing a chiropractor, Dr. Moore. The physician testified that he learned that the Applicant was seeing the chiropractor in approximately April 1991. It appeared that the Applicant was getting relief from the chiropractic treatment. At the same time, he was also going to his physiotherapy sessions and doing exercises at home.

The Applicant was seen again in February 1991 and his condition was not substantially different. On February 4th, the physician signed a letter indicating that he expected the Applicant to return to work in a few weeks, when his recovery was more complete. The physician indicated that he did not disagree with Dr. Jeremias' diagnosis of the Applicant's condition. His note of March 4th indicated that the Applicant would remain off work for three more weeks.

The physician testified that on March 25th the Applicant reported problems in forward flexion. On April 1, 1991, the Applicant complained of tenderness in his lumbosacral spine. He had the same complaint on April 9th, including complaints on left lateral flexion, and on April 23rd he complained of tenderness in the cervical sacral spine. The physician confirmed that he continued to consider the Applicant disabled from work because of his acute back discomfort. He characterized the Applicant's pain as acute and chronic and he indicated at that point the Applicant's pain apparently became worse, as manifested by some restriction of the Applicant's movements. He testified that some people spontaneously restrict their movement and that each person responds to pain in a unique and different manner.

The Applicant's symptoms fluctuated in their severity. He went from better to worse. Throughout, he maintained that he could not do the functions that he used to do at work. The physician testified that in May the Applicant had been feeling considerably better and had less tenderness and a pain-free range of movement. The Applicant attempted to return to work on May 27, 1991. The physician saw the Applicant on June 6th when he reported that after working two hours he had pain and spasms in his neck and lower back, to the extent that he could not carry on. He indicated that he was not sleeping well at nights because of the pain and he became irritable as a result.

The physician prescribed Amitriptyline, a muscle relaxant, to help the Applicant sleep. On June 13th, the Applicant again reported that his spine was tender, and he had pain on left lateral flexion. He also reported some left leg numbness. The Applicant was continuing to see the chiropractor and doing his exercises. He had also started a swimming program. The physician felt that the Applicant might be developing sciatica. Therefore, a CT scan of the Applicant's lumbar spine was ordered. The computerized scan for the lumbar spine revealed that the Applicant has annular (ring shaped) bulging of the L4/5 disk.

On the recommendation of his physician, the Applicant saw Dr. Victor Naumetz, an orthopaedic surgeon, on September 21, 1991. Exhibit 22 is a copy of Dr. Naumetz' reporting letter. Dr. Naumetz found that the Applicant has a reasonable range of motion with no obvious deficit. There was no evidence of nerve root irritation. Dr. Naumetz felt that the Applicant should attempt to resume work as soon as possible, on a gradual and part-time basis, and should continue exercising.

Dr. Naumetz indicated that he would expect the Applicant to gradually return to his pre-injury status. This might take up to another year.

When Dr. Bloch saw the Applicant on October 23, 1991, he reported that he was now working part-time, approximately two or three hours per day. He still complained of persistent discomfort in his lower back and occasional numbness in his left arm and leg. He was still perspiring heavily, and was still seeing his chiropractor. He still had problem sleeping, although he had stopped using the medications. The physician indicated that the Applicant was gradually improving and that his condition was better than a few months earlier. However, he still had tenderness over his trapezius muscles and limited lateral flexion.

In cross-examination, the physician confirmed that the radiological findings indicated minor degenerative changes which were not unusual in a person of the Applicant's age. The CT scan showed a bulging disk, but no disk herniation. The physician testified that he cannot state unequivocally that the bulging disk is the result of the injuries, because no scan had been done prior to the injuries. It is possible that the disk was injured in the accident, since the Applicant had reported no discomfort or pain prior to the accident.

In cross-examination, the physician testified that he knew the Applicant as a patient only. He did not treat the Applicant differently than any other patient. He relied on the Applicant to accurately report his symptoms. The physician testified that his objective findings of tenderness confirmed the Applicant's own reports about his condition. The physician was able to observe the Applicant and note if there was a discrepancy between what the Applicant was saying and his facial movements or gestures.

The physician confirmed that he is aware that the Applicant owns a duct cleaning company and that much of his work consists of heavy tasks, including lifting heavy equipment and getting into awkward positions. The Applicant must bend, reach, kneel and twist to perform many of his functions. The physician testified that he did not analyze the Applicant's business, but simply learned of it from what the Applicant told him. His notes of June 6, 1991 indicate that the Applicant normally does duct cleaning and trains others to do this work. On June 6th, the Applicant reported that he could only do minor paperwork and could not do his usual work.

The physician confirmed that his note of April 23rd indicates that the Applicant's pain is worse when he is in a car, and that his work entails going from location to location. On April 23rd, the Applicant did not indicate how long he could remain in a car pain-free.

The physician was cross-examined about the photographs taken in April 1991. His view was that the photographs did not show anything specific about the Applicant's condition. He noted that Photograph 24 (Exhibit 17) shows the Applicant on a motor scooter. The Applicant had commented that riding his motor scooter was easier on his back than driving a car.

Photograph 30 (Exhibit 17) shows the Applicant apparently flexing to the left. It shows that the movement was performed, but the photograph cannot indicate whether the movement was painful to the Applicant. The physician testified that he thought that particular movement would have been painful to the Applicant at that time.

The physician confirmed that the Applicant was capable of a full range of movement and that the Applicant's movements were not generally restricted. The photograph is not incompatible with movements the physician saw in his office. He considered that there was no discrepancy between the Applicant's reports of pain and his movements on the motor scooter.

The physician was shown the videotapes and he testified that the Applicant's range of movement, as depicted on the videotapes, was also in keeping with what he had observed in his own office. The physician could not give an opinion about whether the motions shown were comfortable. There was no closeup shot of the Applicant's face. The physician noted that some movements may be painful if repeated over a prolonged period of time, but may be performed without discomfort once or twice.

The physician testified that he knew that the Applicant was going to his office from time to time, riding his motor scooter and doing the payroll of his business. If the Applicant had been shown in his car for a prolonged period of time, or changing filters and standing with his hands above his head, he would have been surprised.

Dr. Jeremias gave evidence on behalf of the Insurer. He testified that he is an orthopaedic surgeon with 28 years' experience. He examines persons who complain of traumatic injuries and conducts assessments in a non-treating capacity.

He testified that he saw the Applicant on January 11, 1991 at the request of the insurance company. His impression of the Applicant was that he did heavy, physical work. He conducted some tests for tenderness and concluded that the Applicant had sustained soft-tissue strain in his neck and back. At that time, the specialist considered that the Applicant would probably be able to return to work in another four weeks' time.

The specialist saw the Applicant again on April 18, 1991. At that time, he could find nothing objectively wrong with the Applicant. He continued to suffer from subjective problems, and he was becoming anxious. The specialist's recommendation to the Applicant was that he should stop his physiotherapy treatments and his medications, and start a swimming program.

The specialist viewed the videotapes and commented that they showed the Applicant doing things normally, and did not depict any gross disability. The Applicant was sitting, lifting, bending, and balancing on his motor scooter. His stride, stance and posture seemed normal. He did not make any protective movements.

He viewed the still photographs and commented that number 30 shows a full left-side bend as does number 29. He commented that if a person has back problems, that movement is sometimes difficult to do. He confirmed that the pictures showed that the Applicant was able to make the movement, but did not disclose whether the Applicant was experiencing pain on the movement.

He testified that he was not disputing that the Applicant could and did experience pain on those movements. He felt that, due to pain and the fear of pain, individuals often engage in protectionist behaviour, which may perpetuate their pain. For that reason, he considers that continuing to work is therapeutic. The specialist confirmed that, although there was some risk of re-injury if the Applicant did return to work, he felt that returning to work, on the whole, was preferable. However, he did suggest to the Applicant that he return to work on a gradual basis.

Claudia Stampone gave evidence on behalf of the Insurer. She is a licensed private investigator who works for a company called Scope, and was employed by the Insurer to investigate the Applicant's case. She observed the Applicant on April 18th and took the photographs marked Exhibit 17 to the hearing. She testified that the photographs accurately reflect her observations of the Applicant on that day.

The investigator testified that on April 18, 1991 she observed the Applicant at 8:30 in the morning, travelling in his Oldsmobile to a residence in Oakville. He entered the residence at 8:41 and left a few moments later. From there, he travelled to his office and a few minutes after 9:00 went home. He subsequently drove to Hamilton with his wife, and returned later in the day, stopping at a meat store for errands.

The investigator observed the Applicant again that afternoon. At 1:28, he left his residence on his motor scooter to do errands. He returned home at about 2:30. The Applicant's movements of that day were photographed (Exhibit 17).

The investigator testified that all of the Applicant's movements on that day were normal and fluid, including at one point craning his head to look at the roof of a building.

The witness testified that she next observed the Applicant on Monday, April 29th. The Applicant left his residence at 8:33 in the morning, to go to his chiropractor's office on Randall Street. He left at approximately 9:00 a.m., drove to the plaza, and returned home. At about 10:30 in the morning, he left to do some errands. At that time, the investigator lost sight of the Applicant. She testified that she took five minutes of videotape on that day (Exhibit 18).

The investigator testified that she next observed the Applicant on Thursday, June 27th, at 7:20 in the morning when he left his residence to do some errands and went to his office. While his office, he placed a filter or air cleaner in the trunk of his car, and later drove to a rural residence in the north-east of Oakville. He arrived at 8:58 after driving for a total of 28 minutes. He left some small items, including the filter, at the residence and departed at 9:14 a.m. He stopped at another home in Oakville, and then was observed delivering some small items to a residence in Georgetown. The investigator noted that the Applicant rested the trunk door of the car on his shoulder while searching for items in the trunk. The surveillance was discontinued at 9:46 a.m.

The investigator observed the Applicant again on Friday, June 28th. At 7:40 in the morning, he left his home and travelled to his office where he arrived at 7:44. After placing some filters in his trunk, he drove to a residence. He then travelled to a building on Grenville Drive. He entered the building at 8:28 and at 8:57 he left and returned home.

At approximately 11:00, he left home and went to his office again. From the office he drove to a residence in Mississauga where he delivered a filter. One of the Applicant's trucks arrived at 11:43. The Applicant spoke to the driver a while and then left at approximately 11:52. At 11:55, the investigator lost sight of the Applicant at a busy intersection. However, at approximately 12:24, the investigator observed the Applicant's vehicle in his driveway at home. At 1:14, the Applicant and his wife left to do errands. The investigator lost sight of the Applicant's vehicle en route to Oakville. She testified that Exhibit 19 was a true and unedited depiction of her observations of the Applicant on June 27 and June 28, 1991.

The investigator testified that she observed the Applicant on Tuesday, September 3rd. At 7:15 in the morning, he left for the office on his motor scooter, arriving at 7:54. At 8:47, he took a filter to a residence in Oakville, after stopping at a Chev-Olds dealership on Trafalgar Road. He arrived back at his office at 9:29. At 9:42, he left with another filter. He went home, and at 10:05 he left his home. At that point, the investigator lost the Applicant. However, at 11:52 she observed him returning home. At 11:59, he left his home to do errands. He delivered an air compressor to a dwelling on Speers Road, and then went to a residence on the Third Line. He arrived back at his office at 2:02. He left the office at 2:25 and arrived home at about 2:45. At about 2:49, he and his wife left for the beer store. They took five empty beer cases to the beer store. At 2:56, they left the beer store with a full case of 24 beers, which they carried together. At 3:00, the investigator observed the Applicant and his wife carrying the case of beer into the residence. At 3:30, the investigator discontinued the surveillance. Exhibit 20 depicts the Applicant's activities that day. The investigator last observed the Applicant on September 27th. He left his residence before 7:30 in the morning. At 8:17, he left his office and went back home. At 9:14, he left to do some errands and returned to his office at approximately 10:00 a.m. At approximately 10:45, he left the office and returned home. At 1:15, he left with his wife. The investigator followed them to an industrial plaza. She then lost sight of the Applicant, but at 2:13 in the afternoon she observed his car at home. At 2:17, he left home and went to a restaurant. He left the restaurant at 2:34 when the investigator lost sight of the Applicant and discontinued surveillance. Exhibit 21 is the videotape that depicts the Applicant's activities that day.

The investigator was cross-examined with respect to her observations of September 3rd. The Applicant pointed out that he went to the chiropractor and the physiotherapist on that day. The investigator stated that all the Applicant's movements appeared to be normal and she observed no signs of restriction. She generally observed the Applicant from approximately 100 feet away. All the photographs and videos were taken with the assistance of a Zoom lens. She never saw the Applicant's facial expressions, but judged whether or not he was feeling discomfort by the way he carried himself.

Submissions:

The Applicant made oral submissions indicating that his disability must be assessed in light of his former job functions. He submitted that although he has been working part-time since the beginning of October 1991, he cannot do nine-tenths of what he used to do. He still suffers pain in his upper neck. Dr. Bloch knew him both before and after the accident and is therefore the only medical expert who can accurately assess his condition. However, both specialists who saw him indicated that his recovery to his pre-injury status would be gradual - Dr. Naumetz said it might take up to another year. He submitted that he should be compensated until he is fully fit.

Counsel for the Insurer submitted that the Applicant is currently asking for benefits based on his return to work part-time, but earlier his claim was limited to September 30, 1991. He submitted that it is not open to the arbitrator to make an award beyond the dates specified, to deal with the part-time work issue.

Counsel submitted that the Applicant claimed a disability for almost one year, which is a very long time for someone who is normally self-employed. This is a case of a soft-tissue injury, the effect of which would be expected to last weeks, not months.

Counsel submitted that an individual in the Applicant's position would normally be expected to do administrative tasks and not the onerous jobs which the Applicant testified that he did. Counsel submitted that the Applicant's descriptions of his job duties were inconsistent and that his essential tasks actually were sales training and administrative work.

Counsel submitted that the investigation evidence depicts the Applicant moving freely and driving without difficulty. He generally carried on as would be expected. The investigator's observations show that the Applicant was very active, and never appeared disabled.

Counsel submitted that the Applicant had told Dr. Jeremias he was not working, but in fact he was videotaped working the very morning of his visit to Dr. Jeremias. This reflects on the Applicant's credibility.

Counsel, therefore, submitted that the Applicant was not entitled to additional benefits, that his evidence was not credible, and that he had no ongoing disability after April 1991.

In reply, the Applicant submitted that he could not survive in his business unless he was engaged in it on a "hands-on" basis. He testified that he must be able to do every job involved in his business.

Findings:

Under the legislation, weekly income benefits are payable as follows:

Section 12

(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).

In this case, the Applicant is claiming that, from May 10, 1991 when his weekly benefits were terminated, until September 30, 1991, he continued to suffer substantial inability to perform the essential tasks of his occupation or employment. The Applicant returned to his work on a part-time basis effective October 1, 1991. However, he requested ongoing weekly income benefits with a deduction for income earned.

The Applicant's testimony was that he has continued to suffer pain as a result of his injuries from the accident on October 12, 1990. This pain has prevented him from resuming the normal and essential tasks of his employment.

The Applicant's evidence was that, prior to the accident, he was actively involved in all the operational aspects of his business. Most of the office management functions, including banking, were performed by an office manager. Therefore, the Applicant did not do much sedentary office or managerial work. The Applicant testified that his essential tasks generally required physical exertion. He testified that he was involved in training his driver/operators, the technicians who actually performed the duct-cleaning work, and he often had to demonstrate to them the performance of their tasks.

He also testified that he used to do commercial inspections, to estimate the cost of commercial jobs. To do this, he would physically enter the furnace area of the building, and remove the front of the furnace system to inspect it and estimate what was required to clean it.

The Applicant testified that he used to do most of the routine maintenance tasks on his trucks and cleaning equipment himself, and that he can no longer do this work. He now pays a mechanic to maintain his equipment.

The Applicant also testified that if one of his driver/operators was ill or unable to attend at work, he would replace that person on the cleaning crew. He testified that he also used to do many commercial jobs himself, on Sundays, to save on the cost of labour.

The Applicant's job also normally involved handling and lifting heavy equipment and supplies, such as carrying and cutting steel plates. He also did a lot of driving, which was hard for him after the accident, as he could not sit for any significant length of time. He characterized the majority of his essential tasks at work, prior to the accident, as physically strenuous. He described his work in that way to all the doctors and specialists he consulted. Thus, Dr. Jeremias, in his letter of January 11, 1991 (Exhibit 10), had the impression that the Applicant's job involved "pretty heavy work". Dr. Bloch, in his letter of June 10, 1991 (Exhibit 13), indicates that the Applicant "is in the duct cleaning business, and he has to do a fair bit of bending and twisting with his back."

The Applicant also described his job duties in his application for accident benefits documents dated October 31, 1990, which were not made an exhibit to the hearing. The application package consists of a number of forms including the "Application for Accident Benefits", and the "Employer's Confirmation of Income". Both these forms have a section for a brief job description outlining the applicant's essential tasks, and in particular describing the applicant's physical tasks. The evidence is that, on the application form itself, the Applicant described his essential tasks as sales, inspections, filter installation and driver/operator equipment. On the "Employer Confirmation of Income Form" (which he filled out himself as a self-employed individual), he described his job as training sales people, training technicians, installing electronic filters and changing and repairing electronic shafts and bearings.

This description of his job duties is consistent with the Applicant's testimony.

I accept the Applicant's evidence that the majority of his essential tasks, prior to the accident, were physically demanding or strenuous, as he described them at the hearing. The Applicant impressed me as a candid and straightforward witness, and his description of his tasks, at the hearing, was consistent with how he described his work to the Insurer and to the doctors.

I also accept the Applicant's evidence that he was substantially unable to perform his essential tasks up to September 30, 1991. The Applicant's evidence was that he attended at his office on an almost daily basis, in order to "help out" with light duties and errands, but that he was not capable of performing any tasks that required physical exertion. He did not consider the "helping out" tasks he performed (such as delivering contracts or light-weight air cleaners, or assisting in the office) to be "work" equivalent to his duties prior to the accident. I therefore find that the Applicant was substantially unable to perform his essential tasks for the period between May 10 and September 30, 1991.

I also find that, while the Applicant did attend at his workplace on a regular basis during the period prior to September 30, 1991, he was not fully employed or occupied at that time. His evidence was that he assisted with errands and light tasks for perhaps an hour or two in the mornings. He went home to rest in the afternoons. I accept the Applicant's sworn testimony in this matter, and I note that his testimony is supported by the surveillance evidence.

The surveillance evidence shows that the Applicant attended at his workplace on the days that he was observed by the investigator. The Applicant was depicted delivering light-weight air cleaners to his work crews and, on one occasion, delivering a contract to his office. The evidence also shows the Applicant doing many personal errands such as shopping, and driving to attend at his chiropractor and for the independent medical examination. The surveillance evidence does not show the Applicant engaged in any strenuous tasks, and it verifies that the Applicant was "helping out" at his business on less than a half-time basis.

The Insurer's independent orthopaedic examiner, Dr. Jeremias, suggested that the Applicant should return to work in a letter dated April 18, 1991 (Exhibit 12). That letter states:

... I think he is getting increasingly anxious about his back. He is not willing to come to terms with his minimal discomfort... I think he should return back to work, and in this particular man, this would be therapeutic. I would start him on a half day basis for the first four weeks, and then go back to full work thereafter...

Dr. Jeremias' letter refers to the Applicant's "minimal discomfort" but in his testimony Dr. Jeremias stated that he was not disputing that the Applicant could and did feel the subjective pain that he complained of. Dr. Jeremias suggested a gradual return to work.

The Applicant testified that when he tried to resume his former duties, at the beginning of June 1991, he was not able to. He had to quit after two or three days. His physical condition deteriorated and the pain was worse. The Applicant's evidence was corroborated in Dr. Bloch's notes for June 6, 1991 (Exhibit 24) which indicate:

He returned to work and claims he was fine for the first 2 hours; but, after that, he started to experience significant pain in his neck and lower back with spasms. He's also had pain going down to the outer part of his left knee. He has had to limit his work to instructing others to do what he otherwise would be doing. Normally, he installs air cleaners and trains other people to do it as well. He's able only to last about an hour each day and he has considerable pain following this activity. He's not sleeping well at night because of the pain, and he's more irritable....

...He appears tense and angry at this time. There is tenderness at the C7 level with fair flexion and extension but lateral flexion is limited to about 30 degrees on both sides with pain. LS spine also has tenderness at the LS junction. He has fair ROM but the pain is aggravated by extension and right lateral flexion. SLR is 90 degrees and negative, and there is no neurological deficit....

...I've given his Amitriptyline, 10 MG hs for 3 nights, and then 2 hs x 30. Review in one week....

Dr. Bloch subsequently wrote a letter dated June 10, 1991, (Exhibit 13) verifying that the Applicant had attempted to return to work and was unable to resume his regular functions. That letter states in part:

...Mr. Knapp did return to work...but, after only 2 hours of work, he developed increasingly severe discomfort in his low back, which prevented him from continuing to carry on his normal duties. Since that time, he has been in considerable pain, which has not improved with home back exercises or chiropractic treatment....

...On his last examination of June 6, 1991, Mr. Knapp was experiencing tenderness over his lumbar spine...there was pain in extremes of right lateral flexion and extension...

...In my opinion, Mr. Knapp is unable to perform the functions of his regular work at this time. Perhaps with further therapeutic intervention, he may be able to return to modified work, which should not involve any lifting or bending of his back or prolonged driving....

On July 4, 1991 the Applicant's chiropractor, Dr. Brett R. Moore, prepared a letter for the Applicant (Exhibit 15), which indicates:

The above patient has consulted this office for treatment of a low back and sciatic condition as a result of a personal injury. Although good progress has been made initially, at this point in time his symptoms appear to have been aggravated - possibly due to overexertion or physical activity.

It is recommended that Mr. Knapp refrain from the above until his condition has stabilized.

From Dr. Bloch's notes and his evidence, it is apparent that the Applicant's condition was not improving over the summer of 1991, so Dr. Bloch referred the Applicant for a CT scan, x-rays and an orthopaedic consultation.

Dr. Naumetz, the orthopaedic surgeon, examined the Applicant and reviewed the x-ray and CT scan results. In a letter dated September 27, 1991 (Exhibit 22), he verified that the Applicant had continuing complaints of pain and concluded:

... I have encouraged Roger to try to return to work as soon as possible and to exercise on a regular basis. I would expect a gradual return to his pre-injury status but this may take considerable time (up to year). He may not be able to work full-time immediately but perhaps a gradual part-time return to work would be arranged.

The Applicant followed Dr. Naumetz' advice and returned to work on a part-time basis effective October 1, 1991.

I find that the medical evidence largely supports the Applicant's testimony that he was unable to perform the essential functions of his employment up to September 30, 1991.

The Applicant, at the hearing, also claimed weekly income benefits, since his return to part-time duties effective October 1, 1991. As this issue has not been mediated, nor has the Insurer consented to the arbitration of this issue, I conclude that I have no jurisdiction to deal with it at this time. I remain seized of this matter in the event that the Applicant chooses to proceed to mediation and, if mediation is unsuccessful, requests the appointment of an arbitrator.

The Applicant is entitled to an award for his expenses.

The Applicant is also entitled to an award for his expenses incurred for medical-legal reports pursuant to s. 282(11) of the Insurance Act, and Ontario Regulation 275/90, which sets out the nature of the expenses and the maximum amounts allowable. I remain seized of the matter in the event that a dispute arises regarding the amount of these expenses.

Finally, the Applicant is entitled to interest on any outstanding amounts pursuant to section 24 of the No-Fault Benefits Schedule.

Order:

1. The Applicant is entitled to weekly income benefits from May 10, 1991 to September 30, 1991.

2. The Applicant is entitled to interest at 2 per cent per month on all outstanding amounts owed.

3. The Applicant is entitled to his expenses incurred in respect of the arbitration proceeding, as prescribed under Ontario Regulations 275/90 and the Schedule to the Dispute Resolution Practice Code, including costs incurred for medical-legal reports.

June 3, 1992

Frederika M. Rotter Senior Arbitrator

Date