Neutral Citation: 1993 ONICDRG 6
File No. A-000860
ONTARIO INSURANCE COMMISSION
BETWEEN:
CARLO CARINGI
Applicant
and
THE WAWANESA MUTUAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Carlo Caringi, was injured in a motor vehicle accident on October 26, 1990. He received weekly disability benefits from the Insurer until September 28, 1991. Every motor vehicle policy provides for the no-fault benefits set out in Ontario Regulation R.R.O. 672, (the "No-Fault Benefits Schedule").
The issues to be determined at the arbitration hearing are:
(1) Whether the Applicant is entitled to a weekly benefit from September 28, 1991 and thereafter.
(2) Whether a pension received by the Applicant under the Canada Pension Plan is deductible from his weekly benefits under section 13(3) of the No-Fault Benefits Schedule.
(3) Whether a pension and supplement received by the Applicant under the Workers' Compensation Act are deductible from his weekly benefits under section 13(3) of the No-Fault Benefits Schedule.
The Applicant also claims interest on any outstanding amounts and his expenses incurred in respect to the arbitration.
Result:
The decision is:
The Applicant is not entitled to benefits from September 28, 1991 onwards.
The workers' compensation payments received by the Applicant are not payments for loss of income under section 13(3), and are therefore not deductible from his weekly benefit.
I make no findings with respect to the deductibility of the pension received by the Applicant under the Canada Pension Plan.
No order for repayment of benefits is made.
The Applicant is entitled to his expenses incurred in respect to this arbitration.
Hearing:
A hearing was held at Brantford, Ontario, on June 15 and 16, 1992, before me, Susan Naylor, Senior Arbitrator.
Present at the hearing were:
Applicant:
Carlo Caringi
Applicant's
D. Kevin Davis
Representative:
Barrister & Solicitor
Insurer's
Brian Atherton
Representative:
Barrister & Solicitor
The proceedings were transcribed by Darrel Shelton, court reporter.
Witnesses:
The Applicant
Gina Caringi
David Harold Hoover
Linda Woodcock
Documents before the Arbitrator:
Exhibits:
Exhibit 1
Report of Raymond Lo, M.D., F.R.C.P.(C), Neurology and Internal Medicine, dated April 21, 1992
Exhibit 2
Report of John Clifford, M.D., F.R.C.P., Rehabilitation Medicine, dated September 10, 1991
Exhibit 3
Report of Caroline Quartly, M.D., F.R.C.P.C., F.A.A.E.M., dated August 20, 1991
Exhibit 4
Report of W.S. Blair, M.D., Pain Management Consultant, dated May 25, 1992
Exhibit 5
Reports of W.S. Blair, M.D., Pain Management Consultant, dated April 6, 1992 and May 12, 1992
Exhibits 6
Reports of John Clifford, M.D., F.R.C.P., Rehabilitation Medicine, dated & 7 May 27, 1992 and June 15, 1992
Exhibit 8
Report of Ms. Laurie McLaughlin, P.T., COMP, MCPA, dated June 8, 1992
Exhibit 9
Letter from Ms. D. Karkling, Pensions Adjudicator, Workers' Compensation Board, dated May 5, 1992
Exhibit 10
Report from Douglas S. Gibson, M.D., dated December 9, 1991
Exhibit 11
Form 4 Medical Report from Douglas Gibson, M.D., dated March 19, 1991
Exhibit 12
Form 4 Medical Report from Douglas Gibson, M.D., dated February 20, 1991
Exhibit 13
Application for Appointment of an Arbitrator, dated February 24, 1992
Exhibit 14
Copy of videotape, taken on April 19 and 22, 1992
Exhibit 15
Three medication containers, dated May 25, 1992, April 22, 1992 and October 3, 1991
Documents before the Arbitrator, but not marked as exhibits:
Application for Appointment of an Arbitrator, dated February 24, 1992
Response by Insurer, dated March 17, 1992
Pre-hearing discussion letter, dated April 17, 1992, from K. Julaine Palmer, arbitrator
Brief of Authorities, introduced by the Insurer
Written submissions on behalf of the Insurer, dated July 17, 1992
Written submissions on behalf of the Applicant, dated July 14, 1992
Further written submissions on behalf of the Insurer, dated July 21, 1992
Further submissions on behalf of the Insurer, dated October 30, 1992
Cases cited:
Paese v. United States Fidelity & Guaranty Company, 1985 CanLII 1984 (ON HCJ), [1986], I.L.R. 1-2017 (Dist.Ct)
Parks v. Guarantee Co. of North America, [1989], O.J. No. 1511
Pineda v. The Co-Operators Group Limited, [& 1-1943], (1985) 1985 CanLII 2094 (ON HCJ), 51 O.R. (2d) 787
Norman Downs v. Allstate Insurance Company of Canada, O.I.C. File No. A-000064, dated July 18, 1991
Ralph McCormick v. Economical Mutual Insurance Company, O.I.C. File No. A-000139, dated October 2, 1991
Antonio Pallotta v. Alpina Insurance Co. Ltd. (Zurich Insurance Company), O.I.C. File No. A-000808, dated April 22, 1992
Michael Morin v. The Personal Insurance Company of Canada, O.I.C. File No. A-000468, dated June 16, 1992
Findings:
1. The issue of Continuing Disability:
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).
Under section 13(1), the onus is on an applicant to establish disability to the extent required. The Applicant must first establish the essential tasks in which he would normally engage. Secondly, he must establish that he suffers substantial inability to perform those essential tasks, as a result of the accident.
In the arbitration decision of 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.
The Applicant is fifty-two years old. At the time of the accident, he had been out of the workforce since 1976, due to the effects of a work-related accident which left him with permanent lower back and left leg injuries.
For most of his working life, the Applicant worked underground as a gold miner in Northern Ontario. In 1962, he suffered a serious accident at work. Although he returned to work underground for another eleven years; after two back operations in 1974 and 1976, he was forced to leave mining. In mid-1978, he was relocated to Brantford under an arrangement with the Workers' Compensation Board (WCB) and Canada Manpower. He was given retraining at Mohawk College in 1979, to upgrade his mathematics and English language skills. The Applicant testified that he did well in the former subject but did not do well in English written skills.
The Applicant testified that, after he arrived in Brantford, he was employed as a machine operator; however, he was removed from the job by the WCB, because the job was too physically demanding. He has not worked since then. In 1983, he was assessed for a permanent disability pension by the WCB, and was ultimately awarded a 70 per cent permanent pension in 1984.
Although the Applicant continued to experience ongoing pain and discomfort in his lower back and leg, the evidence is that he led an active and relatively physically demanding life at home before the accident.
The Applicant was a "handyman". He maintained and renovated his home and rental property. He did the gardening. He repaired broken appliances. He did some housework - some dishes, vacuuming and cooking; however, the division of labour in his household was essentially a traditional one. The Applicant did the repairs and maintenance around the house; his wife was principally responsible for the housework.
The Applicant's house is on a large pie-shaped lot. The Applicant maintained the garden. He cut the grass and pruned the trees. He cared for a large vegetable plot, which he replanted every year. Both he and his wife cared for the flower beds.
The Applicant maintained and renovated his home. He installed the appliances in his kitchen and repaired them when they were broken. He built a kitchen in the basement. He laid tiles and wooden floors throughout the house. The Applicant stated that he spent his time taking things apart and repairing them. He also helped his neighbours with these jobs.
The Applicant cut and split his own wood, and estimated that he cut between 8 to 10 cords each year. He used the wood for his fireplace.
The Applicant made his own home-made wine. He estimated that he made about 300 bottles (80 gallons) each year. He would buy a 35 pound box of grapes, and press the grapes at home, using a small, hand-turned crusher. He then bottled the wine, after the juice had fermented.
The Applicant owns another house, which he lets. His current tenant, Linda Woodcock, has rented the house for four years. The Applicant testified that he did all the repairs and maintenance for that house. He renovated the house, adding a recreation room and bathroom. He replaced the plumbing and re-painted the house.
Four years ago, the Applicant bought another house and renovated it. He sold the property at a profit the following year. He testified that he intended to buy and renovate another property. He arranged a $90,000 line of credit for that purpose.
The Applicant's testimony as regards his pre-accident activities was confirmed by his spouse, Gina Caringi, his neighbour, Harold Hoover, and his tenant, Linda Woodcock, all of whom testified.
I find that the Applicant's essential tasks before the accident were gardening, odd job repairs around his house, occasional performance of household chores, such as vacuuming, dishwashing and preparing meals, and the maintenance and improvement of his home and rental property. Based on the evidence, these represent the essential tasks in which the Applicant would normally engage.
The Applicant and his spouse testified that they had planned to purchase and improve other property for resale and had arranged financing for the purpose. No further evidence was adduced in respect to this. In the absence of more specific evidence in relation to this line of business, I am not prepared to find that buying and renovating property with a view to resale comprised a normal and essential task of the Applicant before the accident. In any event, however, for reasons given subsequently, I am not satisfied that the Applicant was physically unable to complete his plans as a result of injuries sustained in the automobile accident.
Having established the Applicant's essential tasks before the accident, it is necessary to determine whether he suffers substantial inability to perform those tasks.
The accident occurred on October 26, 1990. The Applicant was thrown out of the open door of his truck, which was stationary, onto the road. The medical reports record that the Applicant lost consciousness for a period and was admitted to Brantford General Hospital for seven days. No records of his admission were introduced in evidence. However, clearly, there was enough concern about his condition to warrant hospitalization for a number of days.
The Applicant's injuries produced pain in his right back and right hip, which has subsequently resolved, and pain in his neck and right shoulder, radiating down his arm. He suffered from numbness in three fingers of his right hand. He also experienced pain in the right side of his jaw. The Applicant testified that the pain in his right neck has improved with physiotherapy, but the shoulder pain and numbness in his fingers has remained. He testified that he continues to experience difficulty with his jaw, although this has also improved with physiotherapy.
The Applicant claims that the his right shoulder and arm pain and numbness have prevented him from resuming his normal and essential tasks.
The Applicant was paid benefits under his automobile policy until September 28, 1991. It is not disputed that, for this period, the Applicant was unable to resume his normal tasks.
The Applicant has seen a number of doctors and specialists. He has undergone a number of tests and investigative procedures. None of the treating doctors testified at the hearing. However, a number of medical reports were filed in evidence.
The Applicant spent from October 26, 1990 to October 31, 1990 at the Brantford General Hospital. Following his discharge, he was treated by his family physician, Dr. Gibson. He was referred to Dr. Stone, an oral surgeon, for his jaw problem. He was referred to Dr. Lo, a neurologist, for a neurological assessment. He was also referred to Dr. Quartly, who performed an EMG in August 1991. In the Spring of 1992, he was seen by Dr. Harvey. Both Dr. Quartly and Dr. Harvey are specialists in physical medicine and rehabilitation. The Applicant was also examined by a third rehabilitation specialist, Dr. John Clifford, at the request of the Insurer. In the spring of 1992, he was referred to Dr. Blair, a pain-management specialist at Chedoke Hospital.
Three reports of Dr. Gibson were filed in evidence. These included two Form 4 reports, dated February 20, 1991 (Exhibit 12), and March 19, 1991 (Exhibit 11), and a medical-legal report dated December 9, 1991 (Exhibit 10). Dr. Gibson's diagnosis of the Applicant's condition, as a result of the accident, was as follows:
a severe cervical strain
a strain of the brachial plexus on the right side
a pinched nerve at level C7, radiating down the right arm
fibromyalgia at the right of the neck
increased low back pain, resulting from an aggravation of a pre-existing back injury.
In his report of March 19, 1991, at Exhibit 11, Dr. Gibson concluded that the Applicant would be disabled from his usual tasks for a further three months. In his later report of December 9, 1991, at Exhibit 10, Dr. Gibson concluded, with certainty, that the Applicant was left with some disabilities: he continued to have a decreased range of motion in his cervical spine and shoulder area, and neurological signs in his right forearm and hand secondary to compression of the right C7 and C8 nerve roots. Dr. Gibson concluded that the Applicant suffered from chronic pain and "some loss of function".
Because of possible neurological problems, the Applicant was referred to Dr. Raymond Lo, a specialist in neurology and internal medicine. Dr. Lo's report is filed as Exhibit 1. Dr. Lo saw the Applicant on three occasions: May 14, 1991, September 12, 1991 March 18, 1992.
On examination at the first visit, Dr. Lo found exquisite tenderness over the right temporo-mandibular joint, reproducing jaw pain radiating down the neck. He referred the Applicant to an oral surgeon, Dr. Stone, for this problem, but subsequently recorded that the Applicant had been told by Dr. Stone that nothing could be done for him.
Dr. Lo also found tenderness at the right triceps of the Applicant's elbow, radiating up to the shoulder; limited neck movement, especially with flexion and hyperextension, and pain on the right side of the neck.
Dr. Lo concluded that the Applicant likely had cervical spondylosis causing irritation at the C7-8 root, and limitation of neck movement. He thought that the condition was brought on or exacerbated by the accident.
Dr. Lo referred the Applicant to Dr. Quartly, who performed an EMG test on the Applicant in August 1991. Dr. Quartly found limited movement of the cervical spine, and neurophysiological findings of minor changes of chronic denervation in the right muscles. However, she concluded that the majority of the Applicant's functional limitation derived from upper joint cervical dysfunction, which was not amenable to electrodiagnostic testing. She stated that the Applicant would benefit from manual therapy and that, without it, the Applicant would continue to have recurrent problems.
The reports of Dr. Quartly and Dr. Gibson identify loss of function, but not the degree of disability involved.
The Applicant was referred for physiotherapy treatment, which he attended several days a week between mid-September 1991 to January 20, 1992 and again from the middle of April 1992 to May 29, 1992. A report from the Applicant's physiotherapist, Ms. Laurie McLaughlin of ProActive Physiotherapy, dated June 8, 1992, was filed as Exhibit 8. At the commencement of the program, the Applicant's physiotherapist found restricted movement of the Applicant's cervical spine, collar bone and jaw. At the end of the treatment, the physiotherapist noted an improvement in the Applicant's jaw problem, enabling him to eat solid food without difficulty, and an improvement in his neck pain. However, there was no sustained improvement of his shoulder and arm problems.
The physiotherapist recorded that, while she found that the Applicant exhibited a great deal of pain behaviour, physical findings supported his complaints.
The report records that the Applicant was "upfront" in telling the physiotherapist that he had engaged in physically-demanding activities, including using a chain-saw. He told her that he was sore as a result, but wanted to do as much as he could to restore his level of activity. The report indicates that the physiotherapist supported the Applicant's attempts to increase his level of activity.
The report states: "it is likely he (the Applicant) will have ongoing discomfort, especially when he does activities requiring significant exertion".
The Applicant returned to see Dr. Lo on March 18, 1992. Dr. Lo concluded that the Applicant continued to have "significant symptoms" from his neck. He found continuing pain, tenderness and limited movement in the Applicant's right neck and shoulder, and the possible development of a mild weakness in the Applicant's right hand. In Dr. Lo's opinion, the Applicant's condition had deteriorated, rather than improved. He reported that the Applicant's jaw problem had improved with physiotherapy.
Dr. Lo reported that he did not think that the Applicant would be able to function normally, but qualified this, stating that he was unable to comment on this aspect because he was unaware of the Applicant's level of functioning before the accident.
Dr. Lo referred the Applicant to Dr. Harvey, a physical medicine and rehabilitation specialist. No report from Dr. Harvey was filed in evidence.
Dr. Harvey subsequently referred the Applicant to Dr. W.S. Blair, a pain-management consultant at Chedoke-McMaster Hospitals. Dr. Blair's report is Exhibit 4. As of the date of the hearing, Dr. Blair had seen the Applicant twice, on April 6, 1992 and May 12, 1992.
Dr. Blair found pain and restricted range of movement of the Applicant's cervical spine and right shoulder; muscle spasms, myofascial pain and multiple trigger points in the right trapezius and sternomastoid muscles. He also found numbness in three fingers and the forearm of the Applicant's right arm.
Dr. Blair diagnosed myofascial disease, causing ongoing pain and loss of function. He also diagnosed possible cervical radiculopathy, causing the Applicant's right arm pain and numbness. He concluded that the Applicant was suffering from ongoing chronic pain.
Dr. Blair performed trigger-point injections in the right trapezius and the right sternomastoid muscles, and several paravertebral blocks. Further injections and blocks were done on the second visit. According to Dr. Blair's report, the Applicant considered that he had not benefited from the injections, but that his neck had improved by 30 per cent as a result of the physiotherapy treatment.
Dr. Blair concluded that the Applicant suffered from ongoing chronic pain, which was likely to be indefinite. He concluded that the Applicant had experienced a loss of function of his neck and right arm, due to pain and limited motion in the Applicant's neck and shoulder, which would likely last for years. He stated:
The natural course of chronic pain is to continue indefinitely. Treatment may alter this course but it frequently does not. Often all we can do is to try and teach patients techniques to cope with the pain.
Dr. Blair noted that loss of function may be emotional/psychological as well as physical. He considered that a pain behaviour modification program might be beneficial to the extent that the Applicant exhibited chronic pain behaviour. Although he observed the Applicant to be pre-occupied with his pain, Dr. Blair felt he had insufficient information to make this judgement.
The Applicant was examined twice by Dr. Clifford, at the request of the Insurer, on September 12, 1991 and May 25, 1992. His reports are marked as Exhibits 2 and 6. Dr. Clifford found soft-tissue tenderness and reduced range of motion in the Applicant's neck, shoulder and arm. He concluded that the Applicant's symptoms had progressed to a chronic pain syndrome, of moderately severe magnitude. However, Dr. Clifford concluded that the Applicant was expected to function at his pre-accident level.
Subsequently, Dr. Clifford was shown the videotape of Mr. Caringi, marked Exhibit 14, and filed a further report, marked as Exhibit 7. He questioned why the Applicant was receiving a disability pension from any source as he appeared to be capable of working.
The medical evidence indicates that the Applicant's injuries resulted from the motor vehicle accident. The weight of the medical evidence clearly supports a finding that the Applicant continues to suffer from pain and to experience difficulties as a result of those injuries. However, the medical reports filed are of limited use in assessing the degree of disability suffered by the Applicant.
Although all the doctors agreed that the Applicant had sustained some functional limitations as a result of the accident, their reports, with the exception of that of Dr. Clifford, do not document the degree of disability, or the specific limitations reported by the Applicant in performing his daily tasks.
Dr. Clifford's report of September 10, 1991 (Exhibit 2) indicates that the Applicant reported that he was doing indoor domestic activities, and that he was cutting the grass, although slowly, but could not shovel snow. Dr. Clifford's report of May 27, 1992 (Exhibit 6) indicates that the Applicant reported that he could do the following tasks:
fixing small engines
gardening
painting
mowing the lawn with a gas-powered lawn mower
operating a chain-saw
using a sander
Dr. Clifford noted that these activities caused the Applicant pain, necessitating the use of medication. The Applicant did not deny telling Dr. Clifford that he could do these activities, with the exception of fixing small engines, although he stated that he was able to do them only with heavy medication.
The Applicant testified that he could not do much around the house after the accident. The Applicant is right-handed. He could not prepare the supper as he had difficulty holding a knife, due to his numb fingers. He would drop the dishes when he washed up. His hand would become numb if he did the vacuuming.
The Applicant stated that he has not done any repairs or maintenance work around the house since the accident. He only has the use of two fingers in his right hand. He finds it difficult to use small tools, like a small wrench. He cannot grasp nuts and bolts, or use a screwdriver. He cannot bend for more than five minutes due to his back. He cannot swing an axe or a hammer, or use a crowbar.
The Applicant said that he has had to hire someone else to repair appliances when they broke and to do other jobs, such as laying tiles. He would have done these jobs himself before the accident. He stated that a number of repairs and renovations are required, but have not been done.
He stated that, since the accident, he has not been able to press grapes to make wine, because he cannot operate the machine manually. In 1991, he bought grapes, ready-pressed, but he did not like the wine. In 1992, his neighbour pressed the grapes for him.
The Applicant testified that he has been unable to cut and split wood since the accident. He tried to use a chain-saw during a six-week period when he was on heavy medication. He hurt his neck using the chain-saw.
He used a sander as much as possible during the same period. He believed that the vibrations would help loosen his muscles. He stated that work with the tool was painful.
The Applicant testified that his wife had to do the gardening following the accident. He has tried to do some lawn maintenance, because Dr. Harvey recommended the exercise and he wanted to see if he could manage it. He mowed the lawn two or three times in 1991 and two or three times in 1992. However, he found this work difficult, and needed someone to do it for him.
The Applicant stated that he and his wife try to maintain the garden between them. Before the accident, the Applicant did it by himself. They planted the vegetable garden together in the second last week in May of this year. The Applicant testified that he took pain medication to help him do it. The gardening work bothered him the next morning and he felt that he had taken too many pills.
The Applicant testified that he has not been able to do repairs and maintenance work at the house he lets. When repairs were required, the Applicant paid someone else to do them. He tried to fix a broken lock and a toilet, but could not because of the restrictions of his arm and hand.
The Applicant testified that he had to abandon his business plans to renovate property for resale, because of his restrictions.
The Applicant testified that he has problems sleeping, because of pain in his shoulder. He experiences difficulty in the area of personal hygiene: cleaning, washing and shaving. He finds it difficult to reach up to comb his hair or turn his head to shave. With the physiotherapy, he is able to turn his neck instead of having to turn his whole body.
The Applicant's testimony was supported by other witnesses called to testify on his behalf.
Gina Caringi, the Applicant's spouse, confirmed her husband's testimony. She stated that she noticed a difference in the Applicant's condition in the six months before the hearing. The Applicant told her that he was taking some pain medication to help him cope. She observed he had a swollen face while taking the medication. The Applicant helped her more with the household chores. He has tried to do some light vacuuming and to make supper, but he continues to complain of difficulty.
David Harold Hoover, the Applicant's neighbour, testified. He has been a member of the Ontario Provincial Police force for many years. He confirmed that he changed light bulbs for the Applicant and did other chores for him after the accident. He was shown the videotape marked as Exhibit 14. He stated that, since the accident, he had not seen the Applicant engage in an activity, similar to the activity of moving skids, shown in the videotape.
Grace Woodcock, the Applicant's tenant, also gave evidence. She testified that the Applicant has not done work that has been promised and that she has had to hire someone else to do the repairs.
Mr. Hoover and Ms. Woodcock independently testified that, in their view, the Applicant could not do 60 per cent of what he did before the accident.
The issue before me is whether, taking the evidence as a whole, it is established that the Applicant has suffered, and continues to suffer, substantial inability to perform his normal and essential tasks.
The Applicant acknowledged that he does some work in the garden, although not as much as he did before. His wife must do more of the gardening. The Applicant cut the grass two or three times in the past two summers. Together with his wife, he planted the vegetable garden in May. A videotape, introduced as Exhibit 14, showed the Applicant using his right hand to measure fertilizer and pour it into a watering can. He filled the can with water and watered his garden. The weight of the evidence is that the Applicant is able to garden, although not to the extent that he did before.
The Applicant's testified that he was able to use heavy-duty tools, such as a chain-saw to cut wood, and a sander. He explained that he tried using these tools, while he was on medication, to see if he could cope. He stated that Dr. Harvey had encouraged him to push himself and to stretch his muscles for a six week period in April and May 1992. The Applicant said that he took large amounts of pain-control medication, to enable him to use the tools. He introduced three prescription bottles, each of 100 30 mg AC & C tablets of pain medication. These were dated October 3, 1991, April 22, 1992 and May 25, 1992 and are marked Exhibit 15. The October and April bottles are empty; the instructions on the labels indicate "one tablet every 6 to 8 hours, as needed for pain". The bottle dated May 25 is half empty. It reads "one tablet every four hours as needed for pain". The Applicant confirmed that he took all the pills in the bottle dated April 22 in the period between then and May 25, when he renewed his prescription. He stopped taking the pills at the end of May because they upset his stomach and stopped working. He suggested that he was only able to use the tools during the period he was on medication. He stated that he cut the grass, to see whether he could cope.
The Applicant saw several doctors, including Dr. Blair and Dr. Clifford in May 1992. The Applicant confirmed in his oral testimony that he did not tell Dr. Clifford of any problems with his medication. Dr. Clifford records "episodic" use of pain medication. There was no report from Dr. Harvey, or a further report from Dr. Gibson after December 1991, that could throw any light on the Applicant's claim in this regard.
I accept that use of pain-control medication enables the Applicant to function more fully and with less pain. However, the evidence is that the Applicant has been using "292" medication for pain relief throughout the period of his claim. Dr. Clifford and the Applicant's physiotherapist both recorded that, in September 1991, the Applicant reported taking approximately the same number of "292" pills as he had been taking in April and May. Therefore, I conclude that the Applicant takes a large amount of pain medication and that he has done so over a considerable period of time.
The Applicant discontinued his medication shortly before the hearing. He testified that he stopped the medication because it upset his stomach and ceased to be effective. However, the evidence is that he did not tell his doctors that he was experiencing side-effects or that he had discontinued the medication. In these circumstances, I find it difficult to accept the Applicant's explanation.
Furthermore, the Applicant's assertion is unacceptable in light of the video evidence filed as Exhibit 14. The video, filmed on April 22, 1992, shows the Applicant driving to a factory, retrieving large wooden skids from a pile and placing them in his truck. The Applicant confirmed that the skids weighed between 50 to 60 pounds each. The video clearly showed the Applicant climbing over the pile of skids and pulling out the skids that he wanted, with considerable energy and force. Using both arms, he carried about a dozen skids one by one to the truck. He appeared to have no difficulty using his right arm and, on one occasion, could be seen to be apparently balancing a skid on his right shoulder. On one occasion, he carried two smaller skids, one in each hand. He carried each skid to his truck, and lifted them over the tail gate into the bed of the truck. After concluding his task, the Applicant got into his truck immediately and drove away in a business-like manner.
Throughout the process, the Applicant demonstrated no apparent discomfort or distress. He conducted his business energetically, without stopping or indicating any restriction, soreness or pain.
The Applicant testified that he was taking medication during the job. He explained that he wanted to try to see if he could cope with the task. The wood he collected would give him an opportunity to use his chain-saw, and get a reaction from the work.
The video evidence showed the Applicant performing relatively strenuous physical activities, without apparent difficulty. The evidence is that the Applicant is able to use heavy-duty tools associated with maintenance work. I do not find credible the Applicant's evidence that he performed these physically demanding activities and then used a chain-saw, to test his capabilities, when his testimony is that he is able to do very little of his former tasks. While taking pain medication may have reduced discomfort caused by his activities, I find that the Applicant nonetheless remains capable of the activities performed. The Applicant has not established that he suffers substantial inability to perform his usual tasks around the house.
I am concerned by the apparent variance between the Applicant's activities as demonstrated on the videotape and his complaints as noted by the doctors. However, I do not doubt that the Applicant continues to experience pain and some difficulty in his day-to-day activities and, in particular, in using small manual tools and doing small repair jobs, because of ongoing problems with his arm and hand.
However, I find that the Applicant has not established that he suffers substantial inability to perform the essential tasks in which he would normally engage.
The Amount of Weekly Benefits:
The Applicant receives a permanent pension of $863.83, plus a partial supplement of $263.19 under the Ontario Workers' Compensation Act. He also receives a pension of $660.00 per month under the Canada Pension Plan, R.S.C. 1985, c. 8. Both the Canada Pension Plan payments and the workers' compensation payments relate to the Applicant's prior accident at work. However, they continue to be paid after the Applicant's automobile accident in 1990. It is the position of the Insurer that these payments should be deducted from the Applicant's no-fault benefits under section 13(3) of the No-Fault Benefits Schedule. Section 13(3) states:
- The weekly benefit under subsection (1) will be $185 less any payments for loss of income, except Unemployment Insurance benefits.
(a) received by or available to the insured person under the laws of any jurisdiction or under any income continuation benefit plan; or
(b) received under any sick leave plan.
The issue is whether these payments are deductible as "payments for loss of income" within the meaning of section 13(3). It is not disputed that the payments otherwise are received "under the laws of any jurisdiction".
In its application, the Insurer indicated that it was not seeking reimbursement of collateral benefits, regardless of the outcome of the arbitration. Subsequently, in a letter dated April 29, 1992, the Insurer indicated that it wished to reopen this matter, and seek repayment of the workers' compensation benefits. No request was made for repayment of the Canada Pension Plan payments.
I am asked to answer two questions in determining whether the collateral benefits that the Applicant receives are "payments for loss of income" under the regulations:
do the payments compensate for loss of income?
If so, are they deductible even though they do not relate to the automobile accident?
(a) the workers' compensation benefits:
The Applicant receives a monthly pension from the Workers' Compensation Board for his pre-existing disabilities. He also receives a monthly supplement of $263.19 under section 147(4) of the Workers' Compensation Act. He introduced a letter from the Workers' Compensation Board, marked as Exhibit 9, which confirms that his pension is permanent, but the supplement is reviewable in mid-July 1994.
The Applicant testified that his understanding was that the workers' compensation benefits were intended to replace his lost income because he was unable to return to work.
In Antonio Pallotta v. Alpina Insurance Co. Ltd. (Zurich Insurance Company), O.I.C. File No. A-000808, dated April 22, 1992, I held that a workers' compensation pension for permanent partial disability was not a payment for loss of income because it was assessed according to the nature and degree of the injury, and was payable for life regardless of whether the applicant returned to work.
The Insurer sought to distinguish the reasoning in Pallotta on the facts of the individual case. He submitted that in this case the Applicant received a high clinical impairment percentage (70 per cent), and had not returned to work. He submitted that it was reasonable to infer that the pension was designed to replace the Applicant's lost income from employment.
Section 45(1) of the Workers' Compensation Act provides that, in the case of permanent injury, the impairment of earning capacity of the worker is to be estimated "from the nature and degree of the injury". The WCB has established a rating schedule of percentages of average impair-ments arising out of injuries. Under the Rating Schedule, two workers who sustain the same permanent disability will be assessed the same percentage of earning capacity. The system makes no allowance for the economic impact of the injury on the individual worker.
The Applicant's impairment was rated at 70 per cent. However, his pension is not paid to compensate him for an inability to earn income, because it is not dependent on his inability to return to, or to assume, employment. It is based solely on the nature and degree of his physical impairment. The reasoning in Pallotta cannot be distinguished on the basis that the Applicant in this case received a higher permanent impairment percentage rating or did not, in fact, return to work.
I find that the workers' compensation pension is not a payment for loss of income under section 13(3) and therefore is not deductible from his weekly benefit.
The Applicant also received a monthly supplement under section 147(4) of the Workers' Compensation Act. I received no additional submissions with respect to this issue, and make no further determination as to the specific character of the payment. Since I am not satisfied that the supplement is a payment for loss of income under section 13(3), I find that it is not deductible.
In view of the above findings, it is unnecessary to determine whether the workers' compensation payments are deductible, even though they do not relate to the automobile accident.
b) The Canada Pension Plan pension:
The Applicant receives a monthly payment under the Canada Pension Plan of $660.00 in respect to pre-existing disabilities arising from his prior work-related accident. Counsel for the Applicant relied upon the decision of Senior Arbitrator Rotter in Michael Morin v. The Personal Insurance Company of Canada, O.I.C. File No. A-000468, dated June 16, 1992, in arguing that the CPP pension was not deductible because it did not relate to the automobile accident. The decision is presently under appeal to the Director of Arbitrations, and a decision is pending.
It is not necessary for me to determine the issue of the deductibility of the CPP pension in this case. I have found that the Applicant is not entitled to ongoing benefits, and no repayment of these benefits is sought by the Insurer. Therefore, I make no findings as to whether the Applicant's pension is deductible as a payment for loss of income under section 13(3).
Expenses:
The principles governing an award of expenses incurred in connection with an arbitration hearing were discussed in the arbitration decision of Ralph McCormick v. Economical Mutual Insurance Company, Commission File No. A-000139 (October 2, 1991) at pages 23-24, and approved by the Director of Arbitrations in Calogero and The Co-Operators General Insurance Company, Commission File No. P-000251 (February 13, 1992).
In McCormick, it was held that, in light of the intent and objectives of the No-Fault Benefits Scheme to facilitate access to the resolution of disputes regarding no-fault benefits, an award of expenses to an applicant should be made unless, in the circumstances of the particular case, the application for arbitration was manifestly frivolous, or vexatious, or the conduct of the applicant unreasonably prolonged the proceedings.
Having regard to these principles, I find that the Applicant is entitled to his expenses incurred in respect to the arbitration. I remain seized of the matter, in the event that there is a dispute in regards to the amount of expenses.
Order:
The Applicant is not entitled to benefits from September 28, 1991 onwards.
The workers' compensation payments received by the Applicant are not payments for loss of income under section 13(3), and are therefore not deductible from his weekly benefit.
I make no findings with respect to the deductibility of the pension received by the Applicant under the Canada Pension Plan.
No order for repayment of benefits is made.
The Applicant is entitled to his expenses incurred in respect to this arbitration.
February 18, 1993
Susan Naylor Senior Arbitrator
Date