John Beenen v. The Continental Insurance Company of Canada, 1992 ONICDRG 49

Neutral Citation: 1992 ONICDRG 49

File No. A-001239

ONTARIO INSURANCE COMMISSION

BETWEEN:

JOHN BEENEN

Applicant

and

THE CONTINENTAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, John Beenen, was injured in a motor vehicle accident on May 31, 1991. He applied for and received accident benefits from the Insurer payable under Regulation 273/90 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8.

Weekly disability benefits were paid until September 16, 1991, when they were terminated. Mediation was unsuccessful in resolving the dispute between the Applicant and the Insurer, and the Applicant applied for arbitration under the Insurance Act.

The issues in this hearing are:

1. Has the Applicant suffered substantial inability to perform the essential tasks in which he would normally engage, for the period from September 16, 1991 and thereafter, as a result of the motor vehicle accident, occurring on May 31, 1991?

2. Is the Applicant entitled to a special award on the basis that the Insurer has unreasonably withheld payments under section 282(10) of the Insurance Act?

The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.

On his application, the Applicant also claimed expenses incurred in connection with his attendance at a private gym or athletic club. Counsel did not pursue this claim, but reserved the right to claim such expenses in the future.

Result:

1. The Applicant is not entitled to weekly benefits for the period from September 16, 1991.

2. The Applicant is not entitled to a special award under section 282(10) of the Insurance Act.

3. The Applicant is entitled to his expenses incurred in respect to the arbitration.

Hearing:

The hearing was held in Ottawa, Ontario, on Wednesday, August 5, 1992, before me, Susan Naylor, arbitrator.

Present at the Hearing:

Applicant: John Beenen

Applicant's Representative: Anne B. Gregory-Finnie Barrister & Solicitor

Insurer's Representative: Thomas C. Barber Barrister & Solicitor

Witnesses: John Beenen Leona Mathews, Applicant's spouse Cynthia Beenen, Applicant's daughter

Exhibits:

Exhibit 1 Document Brief filed on behalf of the Applicant

Exhibit 2 Document Brief filed on behalf of the Insurer

Exhibit 3 Letter from Ms. Anne Gregory-Finnie to Dr. Edward A. Day, dated June 29, 1992

Evidence:

The Applicant's testimony:

The Applicant is 61 years old. He was involved in a motor vehicle accident on May 31, 1991. The Applicant was driving a car eastward, and had stopped to make a left turn. His car was hit from behind by a truck and was thrown forward between 8 to 15 feet. There was no police report filed, as damage was assumed to be under $500.00.

As a result of the accident, the Applicant was shaking and in shock. His neck hurt. He called his family doctor, Dr. Trepanier, immediately, but was able to arrange for an appointment only some days later, on June 5, 1991.

The Applicant testified that, when he saw Dr. Trepanier, he complained of pain in both his neck and his upper back. Although he complained of pain in his upper back from the outset, he focused on the pain in his neck because this was his most immediate problem. His back pain became progressively more pronounced after a couple of weeks, as his neck pain resolved and he started to move around more.

The Applicant testified that Dr. Trepanier prescribed an anti-inflammatory, Voltaren, to help control his back spasms, and a muscle relaxant to reduce the swelling in his back. He was referred for physiotherapy treatment at the end of July. Until mid-September 1991, the Applicant attended physiotherapy on a twice-weekly basis. He stated that he temporarily stopped physiotherapy while his regular therapist went on holiday. However, the physiotherapy clinic sent a letter to Dr. Trepanier in September stating that he had been discharged from physiotherapy and was fully recovered. The Applicant testified that this was not true, and he told this to Dr. Trepanier. In October, he resumed physiotherapy treatment.

In November 1991, Dr. Trepanier referred the Applicant to Dr. Day, a rehabilitation specialist. Dr. Day performed manipulations on his back. The Applicant testified that he gave Dr. Day a Form 4 Medical Report to complete on his behalf. However, through administrative error, the Applicant was sent only the first page of the form, and it was this incomplete form that he gave to Dr. Day. Dr. Day noticed the error, and did not submit the form to the insurance company.

The Applicant could not recall if Dr. Day took a complete medical and asked him about his lower back. He denied that he went to Dr. Day because his benefits had been terminated. He continues to see Dr. Day on a monthly basis.

The Applicant was cross-examined extensively about a pre-existing lower back problem, referred to in Dr. Trepanier's reports. He testified that he has had the back condition for about twenty-five years, but has only experienced problems with it on three occasions within that time. Dr. Trepanier has been the Applicant's family doctor since 1988. He could not recall whether he first saw Dr. Trepanier because of his back condition. He testified that in early 1991 he had been taking some medication for it.

The Applicant had a recurrence of his low back pain in late 1990. He saw two specialists, Dr. Agarwala and Dr. Dennery, in the spring of 1991. He agreed that, at that time, it was a significant concern, and prevented him from walking or sitting. He stated that his condition had resolved after he received therapy from Dr. Agarwala. He was given some medication for inflammation and recovered after three weeks. He testified that he was not taking any medication immediately before the accident. He has had no low back pain since the accident. However, his physiotherapist will not let him do lifting or standing-up exercises, to avoid putting pressure on his lower back.

The Applicant testified that before the accident he was physically very active. He was self-employed as an engineering consultant, and did inspections and appraisals of homes.

The Applicant was questioned extensively about his employment status before the accident. At the hearing, his counsel confirmed that his claim proceeded on the basis that he was not employed at the time of the accident, or had retired from his self-employment. His claim therefore fell under section 13 of the No-Fault Benefits Schedule.

The Applicant indicated that before the accident his business was going very poorly, but he would not have given it up but for the accident. He testified that he had done no work in his consulting business since the accident. He has not tried to return to work, because he did not want to risk a recurrence of his injury.

The Applicant owns a number of properties, and estimated he spent three-quarters of his time - three to four days a week - maintaining, repairing and improving them. He owns three rental properties, a chalet and a cottage in addition to his home. He did all the design work, the physical labour and carpentry involved in the renovations and improvements. He did the day-to-day maintenance of three condominiums that were rented out to tenants. He was involved in a lot of sports. He played tennis and soccer, and coached hockey and his daughter's soccer team. He is a well-known community activist, and participated on a number of committees and commissions.

The Applicant testified that, since the accident, he has been unable to resume his former activities. He cannot lift things, especially upwards. He has done no work on his consultancy business. He can do some jobs around the house, but his back is the "weak link". In October, he tried to paint the eavestroughs at his house, but could do this for only ten minutes. He has not been able to complete several projects that he planned, for example, to build a floating dock and utility building at his chalet. He feels that he is completely changed. He is not a leader any more. He used to do approximately 24 hours of sports activities a week, and now does only five hours a week. His wife must do all the work around the house. He complained that his weight had increased by 15 or 20 pounds as the result of his inactivity.

He stated that his condition has fluctuated. If he forgets to take his medicine, the inflammation comes back with every little movement.

He testified that in November 1991 he campaigned in the municipal elections for the position of school-board trustee. The campaign lasted for four weeks before the election date in mid-November. He actively campaigned for three weeks of this time. He described his activities during the campaign as between six to eight hours of walking, meeting and talking to people. He estimated that he visited several thousand people. He did not feel the work involved physical exercise. He did his own campaigning, including the distribution of brochures and the posting of campaign signs.

The Testimony of Ms. Leona Mathews:

Ms. Leona Mathews, the Applicant's spouse, gave evidence. She stated that before the accident her husband had done all the work around the house - building, cutting grass or trees, and maintenance. Sports were a very large part of his life. He played golf, soccer and badminton. He water-skied in summer and cross-country skied in winter.

She stated that, since the accident, the Applicant has been completely different. He has not completed his work at the cottage or the house. She stated that they had planned to build a garage and dock for the boat at their chalet. However, these projects have not been completed. She agreed that her husband had bought material for the dock approximately two years previously.

She stated that her husband does not do physical activities now, and watches television too much. She did not remember that the Applicant had any previous back problem.

The Testimony of Ms. Cynthia Beenen:

Cynthia Beenen, the Applicant's daughter, also gave evidence. Until mid-June 1991, she was at school. Thereafter, she spent the summer at the cottage or at home. She said that she was at home most of the time for a couple of weeks. During that time, her father complained that his back was sore, and that he could not do anything. He mentioned that the pain was in the middle of his back or higher up. He still continues to complain about it.

She stated that her father always used to do lots of things around the house. He helped build and renovated the cottage. The family own several apartments and her father had put skylights in them. He did the painting and fixed things up. She stated that he could not paint after the accident because, when he lifted his arms, it bothered him. A planned project to build a dock and a shed at the cottage had not been completed.

Before the accident, her father had played soccer regularly, and was her tennis partner. He coached her soccer team. During the summer of 1991, he did not play soccer or tennis, and he did not cross-country ski that winter. She stated that her father does not participate in any sports any more. He spends his time watching television. He has trouble lifting things, and she stated that she will pick things up for him. She cuts the lawn and takes care of the pool. She stated that her father sometimes takes the pool cover off. He can help a bit. The summer after the accident was the first time that cutting the lawn became her job. However, her father now does it once in a while. He still does some swimming. She was unaware of his prior medical history and medications.

Medical Evidence:

The medical evidence consisted of a number of medical reports and letters. They include the clinical notes of Dr. Trepanier for the period from September 1990 to February 1992 (Exhibit 1, Tab 14).

Two Form 4 medical reports, dated August 13, 1991 and October 21, 1991 from Dr. Trepanier, were filed in evidence as Exhibits 1, Tab 2 and Tab 4. In the reports, Dr. Trepanier noted a pre-existing history of low back pain secondary to degenerative disc disease of more than twenty years standing.

Dr. Trepanier's clinical notes show that the Applicant complained of low back pain secondary to his degenerative disc disease in the fall and winter of 1990-1991. X-rays taken in September 1990 apparently revealed degenerative changes at levels L2-L3 and L5-S1, with narrowing and bony spurring at L4 to L5.

The note for September 18, 1990 (the first notation for the period disclosed) indicates:

"some improvement in back pain. Voltaren helps for..two hours.

The clinical notes record that Dr. Trepanier recommended continuing the anti-inflammatory medication, strict bed-rest for one week, and a consultation with Dr. Agarwala, an orthopaedic specialist.

The notes show that the Applicant had an appointment to see Dr. Agarwala on October 9, 1990. Repeat prescriptions for anti-inflammatory medication are shown for the months of October, November and December 1990.

The notation for March 1, 1991 reads:

Patient as usual had numberous (sic) questions and concerns about his back problems. He was anxious re the fact that Dr. Agarwala told him he could no longer help him and recommended he see a neurosurgeon. Pt. tried discontinuing his med. and found that his back would stiffen up within a week. IMP:ANXIETY 1/2 hr. psychotherapy

In mid-March, an appointment was made for the Applicant to see Dr. Dennery, a neurosurgeon, on May 13, 1991.

The motor vehicle accident happened two weeks later on May 31, 1991. Dr. Trepanier's clinical notes show that he first saw the Applicant after the accident on June 6, 1991. They record that the Applicant complained of a gradual onset of stiffness in the back of his neck and of headaches. On examination, Dr. Trepanier found tenderness over the right trapezius (neck), and pain on lateral flexion and rotation of the neck on the left side. He diagnosed a cervical strain and recommended a continuation of the Voltaren medication, a muscle relaxant, and heat treatment.

The notes record that Dr. Trepanier next saw the Applicant on June 17, 1991. The Applicant complained of tightness in his back at the right scapular (shoulder blade) area, and was found to have muscle spasms below the right trapezius area, and pain on rotation to the right side. According to the notes, the Applicant continued to complain of a sore neck and headaches at his next visit on July 29, 1991, and was found to have tightness at the right of his neck and pain on flexion. Dr. Trepanier confirmed his original diagnosis of cervical strain. He referred the Applicant for physiotherapy and prescribed anti-inflammatory medication again, after noting that the Applicant had stopped the medication when his low back pain improved.

In his Form 4 medical report dated August 13, 1991, that accompanied the Applicant's application for accident benefits (Exhibit 1, Tab 2), Dr. Trepanier estimated that the Applicant would be ready to return to his usual activities in September 1991.

The notes of the Beacon Hill physiotherapy clinic are contained at Exhibit 1, Tab 15. These show that, at the commencement of the treatment program at the end of July, the Applicant's complaints included pulling and pain in his mid-back. The physiotherapist found decreased range of movement in the cervical and thoracic spine, presenting a clinical impression of facet syndrome at C3-C4 and T6-T7 levels. The records indicate that the Applicant was discharged from physiotherapy on September 16, 1991, pain-free, with full range of movement.

Dr. Trepanier next saw the Applicant two months after the previous visit on October 1, 1991. His clinical notes record this visit. In addition, he filed a further Form 4 Report, dated October 21, 1991, contained at Exhibit 1, Tab 4.

The notes show that the Applicant had visited the doctor because he was suffering from a sore mid-back after he painted the eavestroughs at his house. On examination, the doctor found pain and limited movement on rotation of the Applicant's thoracic spine to the right. He prescribed Voltaren again, and recommended continued physiotherapy.

His report indicated that the Applicant had sustained a cervical strain as a result of the automobile accident, but that this seemed to be resolved on the Applicant's discharge from physiotherapy. Dr. Trepanier's diagnosis was degenerative disc disease. His secondary diagnosis was cervical strain, and facet syndrome at levels C3-C4.

He confirmed his original view that the Applicant was fit to return to his usual activities the prior month, in September. He added:

I don't feel latest thoracic pain is related to the MVA of May / 91.

The records indicate that the Applicant resumed physiotherapy at Beacon Hill, and that he next saw Dr. Trepanier on November 13, 1991. On this visit, he complained of back pain, but his neck pain had apparently resolved. The notes indicate that the Applicant told Dr. Trepanier that he could lift things above his head, but with discomfort, and that pain with movement was minimal, but interfered with his work, specifically general house-work, like painting. On examination, Dr. Trepanier found normal range of movement with mild tenderness at the T6-T7 thoracic levels.

The notes indicate that the Applicant, at his request, was referred to Dr. Day, a physical medicine and rehabilitation specialist, for manipulative treatment. Dr. Trepanier explained that this referral was made primarily for the Applicant's ongoing thoracic problem (Exhibit 2, Tab 7, February 17, 1992 letter).

Dr. Day's reporting letter to Dr. Trepanier, dated November 20, 1991, is contained at Exhibit 1, Tab 3. A report dated July 16, 1992 (Exhibit 1, Tab 11), his clinical notes (Exhibit 1, Tab 16) and his curriculum vitae (Exhibit 1, Tab 11) were also filed as exhibits.

According to the records filed, Dr. Day saw the Applicant first on November 18, 1991. They show that the Applicant presented with complaints of upper back pain, below the shoulder blades, radiating primarily to the right side of his body, and neck injuries which were no longer troubling him. The Applicant complained of not being able to resume physical activities or sports. Dr. Day recorded that prior to the accident "this man was well." He noted that the Applicant was strong, muscular and had participated in a number of sports.

Dr. Day examined the Applicant and found normal cervical rotation, with no neurological abnormality. However, on palpitation, he found pain and blocked movement at several thoracic vertebrae in the Applicant's upper back.

Dr. Day concluded that the Applicant's upper back pain was compatible with a finding of facet syndrome at the 7th vertebral level at the base of the neck, and T1, T3, T4, T8 and T10 thoracic vertebral levels in his upper back. In a medico-legal report dated July 16, 1992 (Exhibit 1, Tab 11), Dr. Day stated that a worsening of the Applicant's symptoms in painting his eavestroughs would be consistent with a finding of traumatic facet syndrome, because the pain would be exacerbated by physical activity. The report stated:

By facet syndromes is meant blocked or compromised movement of those specific joints, as a result of the loss of normal joint play, secondary to excess force. There is no damage nor pathology of the tissues in or around the joints, as far as is known, and the condition is considered to be mechanical or functional in nature. The history of previous trauma is compatible. The diagnosis is controversial, because it is established entirely by palpitation and digital examination for joint movement and function; there is no pathology nor tissue damage which can be identified by any means that I know of.

Dr. Day performed manipulative treatment with the objective of restoring joint movement.

The Applicant continued to see Dr. Trepanier on a regular basis, at least until February 1992, and to complain of upper and mid-back discomfort. Dr. Trepanier's notes indicate that the Applicant experienced discomfort doing manual work around the house, particularly involving upper body movements such as shovelling snow and painting. Pain around his neck and shoulders interfered with his enjoyment of sports activities. The Applicant also continued to receive physiotherapy. A letter, dated January 14, 1992 from the Applicant's physiotherapist to Dr. Trepanier, records that the Applicant displayed full thoracic range of movement, and no dysfunction at the T7-T8 level, with minimal facet tenderness. The letter states that the physiotherapist has encouraged the Applicant to increase his activity with cross-country skiing and free weights.

Dr. Trepanier summarized his findings in his letter of February 17, 1992 as follows:

I feel that (the Applicant's) original injury of May 31, 1991 related to his neck problem from which he has fully recovered. The described pain in the mid and lower back areas referred to as facet syndrome T6-7 seemed to have come on a long time after the accident..I do not feel that any of these injuries are disabling to (the Applicant) at least to the point of interfering with gainful occupation. In his own admission (the Applicant) is only troubled by discomfort when he does manual labour around the house and as stated to me he feels that he is owed something for this minor degree of impairment.

The Applicant, in his testimony, denied he made this last statement to Dr. Trepanier.

On June 29, 1992, Counsel for the Applicant wrote to Dr. Day to request a medico-legal report with respect to the Applicant's condition. She enclosed copies of Dr. Trepanier's reports, and asked Dr. Day to respond to a number of specific questions. The letter is at Exhibit 3. Dr. Day's response is set out at Exhibit 1, Tab 11). The questions included whether any pre-existing conditions existed which may have been exacerbated by the current injury, and the estimated date when the Applicant would be able to return to his usual activities. In response, Dr. Day wrote:

There is no evidence that (the Applicant) suffered from any previous condition which would have a bearing on the injuries incurred in the motor vehicle collision. At his age, degenerative changes as revealed in x-rays would be expected and a normal finding. There is no study that I am aware of that has managed to correlate the symptoms of back pain with the normal wear and tear as revealed by x-ray examination, and seen normally from age 30 onwards. Degenerative disc disease appears to reduce the shock absorbing ability of the spine as one ages, but is not a painful condition per se, as far as anyone has demonstrated.

His report concluded that facet syndrome was a treatable condition, with rapid abatement on successful restoration of joint function. The report stated that the Applicant responded well to treatment, but the relief appeared to be temporary. The prognosis was unknown.

Dr. Day's impressive resume was filed in evidence at Exhibit 1, Tab 11. He holds a Fellowship in Physical Medicine and Rehabilitation, Royal College of Physicians and Surgeons of Canada, and, after a number of university appointments, now operates his own practice in physical medicine and rehabilitation in Ottawa, retaining a part-time appointment at the University of Ottawa. He is also a member of the consulting staff at Riverside Hospital.

The Applicant continues to receive manipulative treatment from Dr. Day, and to receive physiotherapy.

At the request of the Insurer, the Applicant was seen by Dr. El-Sawy, a certified physiatrist, on July 13, 1992. Dr. El-Sawy's report and resume are attached as Tab 2, Exhibit 8. He concluded that the Applicant suffered from a facet syndrome in the dorsal spine as a result of tension, apparently due to stress from inactivity, but did not suffer any injury to his dorsal spine in the accident, and that he was not disabled. In response, a further report dated July 28, 1992 was filed from Dr. Day, in which he stated that facet syndrome was a mechanical condition, and resulted from trauma or excess leverage on the spine (Exhibit 1, Tab 13).

Submissions:

Counsel for the Applicant:

Counsel for the Applicant submitted that the medical evidence supported a finding of facet syndrome, and that the Applicant's problems resulted from the automobile accident, not a pre-existing condition. She submitted that Dr. Day expressly addressed the issue of whether degenerative disc disease caused the Applicant's current problem.

She submitted that her client was an unusual 61 year old and an "easy target" for the insurance company. She submitted that the evidence with regard to the discomfort and pain suffered by her client was significant, and that 80 per cent of the time he was working in some kind of physical activity. She submitted that the insurance company had acted unreasonably, because it did not follow up with Dr. Day with respect to his incomplete report.

Counsel for the Insurer:

Counsel for the Insurer submitted that the Applicant has the onus of establishing entitlement to benefits. He submitted that the Applicant had a significant, pre-existing back injury. He questioned the Applicant's credibility, and whether he had been forthcoming with Dr. Day about his prior back problem. He submitted that Dr. Day did not specifically comment on causality or on disability. He further submitted that the Applicant had not established the degree of disability required.

He submitted that the Insurer had acted reasonably in the circumstances, in requesting clarification from the Applicant's family physician.

Findings:

The Applicant claims weekly benefits under section 13 of the No-Fault Benefits Schedule. Section 13(1) 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 benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).

The onus is on an applicant to establish:

a) that the injuries complained of resulted from the motor vehicle accident;

b) that these injuries rendered the applicant substantially unable to perform the essential tasks in which he or she would normally engage, for the period claimed.

a) Causality:

The Applicant was involved in an accident on May 31, 1991, when his car was rear-ended from a stationary position. He testified that his initial problem was neck pain, for which he saw his family physician several days later. His physician diagnosed a cervical strain. On the Applicant's own evidence, as well as on the medical evidence, the Applicant's neck problem had largely resolved by November 1991.

The Applicant claims that he continues to experience disabling upper and mid-back pain resulting from the accident. The issue for determination is whether the evidence establishes that the Applicant's back pain was caused or aggravated by the accident.

The evidence is that, before the accident, the Applicant was very active. He engaged in a great deal of physical activity, building and maintaining his properties, and participating in vigorous sporting activities. However, he had also suffered from a symptomatic pre-existing condition of degenerative disc disease of more than twenty years standing, giving rise to episodic periods of low back pain. According to Dr. Trepanier's reports, x-rays taken in 1990 showed degenerative changes to be at levels L2-L3 and L5-S1, in the Applicant's lower back, with narrowing and bony spurring at L4-L5.

The scope and extent of the Applicant's pre-existing back problem is difficult to evaluate on the evidence before me. It is clear, however, that the condition had been symptomatic within a relatively recent period before the accident. The clinical notes introduced in evidence cover the period from September 18, 1990 onwards. They show that the Applicant suffered from low back pain as a result of his degenerative disc disease in the fall and winter of 1990-1991. The problem was clearly one of considerable magnitude. The Applicant could not walk or sit for any prolonged period and, in September 1990, he had been confined to bed-rest for a week. He required continued anti-inflammatory medication to relieve the problem, and the notes show repeat prescriptions of Voltaren until at least December 1990.

In October 1990, the Applicant saw an orthopaedic specialist, Dr. Agarwala, who apparently recommended that he see a neurosurgeon. The Applicant testified that the problem resolved after he received therapy from Dr. Agarwala. However, the notes indicate that the Applicant continued to have back problems well into 1991. The clinical notes for March indicate that the Applicant tried to discontinue his medication, but found "his back would stiffen up within a week".

On March 11, 1991, he discussed his anxieties about his back with Dr. Trepanier, who referred him to a neurosurgeon, Dr. Dennery, for an appointment on May 13, 1991. The Applicant apparently attended this appointment, but presented no evidence in respect to the consultation or treatment recommended.

In his evidence, the Applicant minimized the significance of his pre-existing condition. However, the available medical evidence shows that, before the accident, the Applicant experienced very significant problems in relation to his lower back. This Applicant was not pain-free and asymptotic before the accident.

In his reports, Dr. Trepanier has indicated that, in his view, the Applicant's ongoing complaints of thoracic pain were not related to the injuries he sustained in the motor vehicle accident, but more likely represented a recurrence of back pain from his degenerative disc disease, triggered by his physical activities in painting his eavestroughs in October 1991. Dr. Trepanier's notes, following the accident, record a complaint of neck pain which he diagnosed as a cervical strain. Dr. Trepanier felt that the Applicant's mid-back and upper-back complaints had developed a considerable time after the accident. He has maintained this view throughout.

Dr. Trepanier has been the Applicant's family physician since 1988, and has had the benefit of seeing the Applicant over a number of years. In forming his views, he can be assumed to be familiar with the Applicant's history.

Furthermore, Dr. Trepanier's notes appear to contradict the Applicant's claim that his injuries from the accident disabled him from sporting activities in the summer of 1991. The notes suggest that the Applicant had voluntarily ceased some sports activities to relieve his lower back problem. Dr. Trepanier's notes for July 29, 1992 state:

Still complains of sore neck (and headaches back of neck). Stopped Voltaren when his low back pain improved. He has stopped the sports which contributed to his back pain.

The Applicant has filed reports from Dr. Day which, he submits, support his position that his back pain is causally related to the accident. Dr. Day found that the Applicant suffers from facet syndrome, in the seventh vertebral level at the base of the neck and T1, T3, T4, T8 and T10 thoracic vertebral levels. He states that the history of previous trauma is compatible with this finding.

However, Dr. Day was not asked to address, and does not express a view, whether the accident caused the Applicant's back problem. He was asked whether any pre-existing conditions may have been exacerbated by the injuries the Applicant sustained in the accident. In his response, he indicated that there was no evidence that the Applicant suffered from a previous condition which would have a bearing on his injuries, and that there was no proven correlation between the symptoms of back pain and the normal wear and tear and degenerative changes revealed by x-ray examination.

It appears that Dr. Day was not aware that the Applicant's degenerative disc disease was symptomatic prior to the accident. The Applicant testified that he did not recall being asked by Dr. Day about any prior back problem during the examination. He did not testify that he told Dr. Day about his low back pain. Dr. Day noted that the Applicant was "well" before the accident. This information was provided by the Applicant. It was not correct. Dr. Day's records do not indicate that he knew that the Applicant had recently consulted two specialists about his back, one as recently as two weeks before the accident.

Counsel for the Applicant submitted that the clinical records show that the Applicant had pain in his upper and middle back following the accident, and not in his lower back. She suggested that Dr. Trepanier would have ordered more x-rays or referred the Applicant to the original specialists, if he thought the Applicant's problems were related to his pre-existing condition.

In the absence of specific medical evidence on point, the relationship between the Applicant's reported symptoms of pain in his mid and upper back and the degenerative changes in his lower back is unclear. However, the onus is on the Applicant to establish that the automobile accident caused or aggravated his condition. In this case, I find that this onus has not been met.

The evidence is that the Applicant had a pre-existing problem, that was symptomatic in the period prior to the accident. No evidence supports a finding that the Applicant's back condition was aggravated by the accident. The Applicant's family doctor, who has treated the Applicant since 1988, disagrees that the accident caused the Applicant's thoracic back pain. Dr. Trepanier was not called to testify at this hearing to resolve any questions.

In support of his case, the Applicant filed reports from Dr. Day. These reports do not provide a clear opinion in regards to causality, and appear to be based on incomplete information about the Applicant's prior medical condition. Dr. Day was not called to testify to resolve these uncertainties. In addition, the Applicant filed no evidence from the two specialists whom he consulted about his lower back problem immediately before the accident.

In all the circumstances of this case, I find that the Applicant has failed to satisfy the onus on him to establish, on the balance of probabilities, that his ongoing back problems relate to the automobile accident.

Disability:

The second issue is whether the Applicant suffers substantial inability to perform the essential tasks in which he would normally engage for the period claimed. I am determining this issue, notwithstanding my ruling above, in the event that the above ruling is found to be incorrect.

It is necessary first to establish an applicant's essential tasks in which he or she would normally engage. Then, it must be established that the applicant suffers substantial inability to perform these essential tasks.

In the arbitration decision Norman Downs v. Allstate Insurance Company of Canada, Commission File No. A-000064, dated July 18, 1991, I held:

To establish entitlement to weekly benefits, evidence must be adduced that the effects of the injury, to some significant extent, prevent an applicant from carrying out the necessary and key tasks that were normally performed before the accident. It requires an individualised inquiry into the circumstances of the particular applicant, in order to identify the activities of daily living prior to the accident and compare them with the post-accident activities.

(Italics added)

The Applicant framed his claim under section 13 of the No-Fault Benefits Schedule. In his application, he described himself as "virtually retired" and this seems to be the best approximation of his employment status. I find that the Applicant had done very little in the way of work in his consulting business immediately prior to the accident and either had retired or intended to retire at or about the time of the accident. In my view, the activities associated with his consulting business are not essential tasks in which he would normally engage.

I accept the Applicant's evidence, and that of his family, that he was physically very active before the accident and carried out a broad range of activities that were physically demanding. The evidence is that he maintained a number of properties that he owned, including his house, his cottage, his chalet and several condominiums which he rented out, doing both day-to-day maintenance and improvements. Based on the evidence, these represent the essential tasks in which he would normally engage. I also accept that he participated in numerous sporting activities, including tennis, soccer, swimming and cross-country skiing.

It is not disputed that, for a period of three and a haf months after the accident, until mid-September 1991, the Applicant was unable to resume these activities. After that time, I am convinced that the Applicant continued to experience pain and difficulty with many tasks around the house, and was not able to enjoy sports to the extent he had in the past. I accept that he is not "able to go all out" as before. For a man as active and energetic as the Applicant, this is frustrating and distressing to him and his family. However, I am not satisfied, on the basis of the evidence before me, that the Applicant suffered substantial inability to perform his essential tasks.

Meaning must be attributed to the words "substantial inability". While counsel for the Applicant is correct in her assertion that these criteria do not require proof of "total disability", they do require that the applicant be "substantially" unable to perform his essential tasks.

The Concise Oxford Dictionary defines "substantial" as:

adj. 1. a. of real importance or value

b. of large size or amount

4. essential; true in large part

The evidence is that the Applicant experiences pain and difficulty in doing tasks around the house. He is unable to perform some of his former tasks - painting and snow shovelling, in particular. In his testimony, however, the Applicant acknowledged that he was able to do some jobs around the house, albeit with pain. His daughter confirmed that her father sometimes cuts the lawn and takes the cover off the pool. The Applicant testified that he was unable to maintain and improve the properties that he owned as he was accustomed to doing. While I accept that the Applicant does not do as much as he did before the accident, there was no evidence that he has had to hire someone to maintain his properties for him. It is reasonable to infer that he is able to do some of the maintenance, although not as much as he would like to do.

The family identified two specific projects that the Applicant had not completed - the launching dock and utility building. I accept that these are the sort of tasks that the Applicant would have done before the accident. However, I am not satisfied that, taking his tasks as a whole, the Applicant can be said to be substantially unable to perform them.

Furthermore, on his own evidence, the Applicant was able to campaign vigorously during the municipal elections for at least three weeks before election day on November 11, 1991. Throughout this period, for the six weeks from October 1, 1991 to November 13, 1991, the Applicant's condition did not require him to see his family physician. Moreover, although the Applicant continued to attend physiotherapy once or twice a week in October, November and December, he did not attend in November, until after the conclusion of the election. The Applicant's apparent unimpaired ability to campaign for municipal office is a relevant factor in determining his physical capacities during the period claimed.

The Applicant complained that he is unable to participate in sports to the extent he has done previously. It is unnecessary for me to determine whether participation in sports, of itself, represents a "task" within the meaning of section 13. While I accept that the Applicant's condition affected his enjoyment of sports and limited the time and activities involved, the evidence is that he is able to participate in some sporting activities, such as swimming and cross-country skiing, and does so for at least five hours each week. In addition, as stated above, Dr. Trepanier's notes indicate that the Applicant had voluntarily ceased some sporting activities in the summer of 1991 to relieve his lower back problem.

There is little medical evidence to support the Applicant's claim of substantial disability.

Dr. Trepanier concluded that the Applicant was ready to return to his essential tasks in September 1991. He did not revise this opinion. His notes about visits from November 1991 to February 1992 recorded that the Applicant reported experiencing difficulty doing physical jobs around the house. However, on examination, there were few objective findings of restricted movement. Nothing is recorded beyond February 1992.

The physiotherapist's notes indicate that the Applicant sustained some functional limitations, but cannot be taken to support the Applicant's claim of substantial inability to perform his essential tasks.

Dr. Day was asked expressly by counsel for the Applicant to give an opinion on when the Applicant could return to his usual activities. However, his report does not address the Applicant's degree of disability. In my view, this omission is striking.

In all the circumstances, I find that the Applicant has not established that he has suffered substantial inability to perform his essential tasks from September 16, 1991 and thereafter. Nor can I find that the functional restrictions he continues to experience result from the motor vehicle accident of May 31, 1991.

I find therefore that the Applicant is not entitled to weekly benefits for the period from September 16, 1991, when benefits were terminated, onwards. I further find that the Insurer has not unreasonably withheld or delayed payments under section 282(10) of the Insurance Act.

Expenses:

The Applicant has claimed his expenses in participating in the arbitration, under section 282(11) of the Insurance Act. The prescribed expenses and amounts are set out in Schedule 1 to the Dispute Resolution Practice Code, and Ontario Regulation 275/90.

The principles guiding an award of expenses incurred in respect of an arbitration proceeding were discussed in the arbitration decision, McCormick v. Economical Mutual Insurance Company, Commission File No. A-000139, dated October 2, 1991, and approved by the Director of Arbitrations in the appeal decision of Vito Luigi Calogero v. The Co-Operators General Insurance Company, Commission File No. P-000251, issued on February 13, 1992.

In McCormick, it was held that, in light of the intent and objectives of the No-Fault Benefits Schedule, to facilitate insureds' access to speedy dispute resolution, an award of expenses should be made to an applicant unless, in the circumstances of the case, the application was improper. While the Applicant has not succeeded in his application, I find that he has acted throughout honestly and in good faith.

He is entitled to an award of his expenses in respect of the arbitration. In the event the parties cannot agree as to the amount of expenses, I remain seized of this matter, and a party may apply for an assessment of the expenses before me.

Order:

1. The Applicant is not entitled to weekly benefits for the period from September 16, 1991.

2. The Applicant is not entitled to a special award under section 282(10) of the Insurance Act.

3. The Applicant is entitled to his expenses incurred in respect to the arbitration.

December 10, 1992

Susan Naylor Senior Arbitrator

Date