Neutral Citation: 1994 ONICDRG 128
File No. A-005905
ONTARIO INSURANCE COMMISSION
BETWEEN:
MARK W. COOPER
Applicant
and
JEVCO INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Mark W. Cooper, was injured in a motor vehicle accident on May 12, 1992. He received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721.
Mr. Cooper initially indicated that he was unemployed at the time of the accident, and was paid weekly disability payments under section 13 of the Schedule. These benefits were terminated on July 15, 1993, on the basis that Mr. Cooper was no longer substantially unable to perform his essential tasks. Mr. Cooper challenged the termination, and also took the position that he was working at the time of the accident, and therefore, that his eligibility should be determined under section 12 of the Schedule.
The parties were unable to resolve their dispute through mediation and Mr. Cooper applied for arbitration under the Insurance Act.
The issues in this hearing are:
Does Mr. Cooper qualify to receive weekly income benefits under section 12 of the Schedule, on the basis that he was employed at the time of the accident?
If so, has Mr. Cooper suffered substantial inability to perform the essential tasks of his employment, and for what period?
What is the amount of weekly income benefits to which he is entitled?
If Mr. Cooper does not qualify for weekly income benefits, is he entitled to weekly benefits under section 13 of the Schedule, from July 15, 1993 and thereafter?
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
Mr. Cooper has not established his eligibility for weekly income benefits under section 12 of the Schedule.
Mr. Cooper is not entitled to weekly benefits under section 13 of the Schedule, from July 15, 1993 and thereafter.
Mr. Cooper is not entitled to the expenses he incurred in respect to this arbitration.
Hearing:
The hearing was held in Sarnia, Ontario, on Thursday, March 31, 1994, before me, Susan Naylor, Senior Arbitrator.
Present at the Hearing:
Applicant:
Mark W. Cooper
Applicant's Representative:
Lyle F. Curran
Barrister and Solicitor
Insurer's Representative:
Barney Brucker
Barrister and Solicitor
Witnesses:
Alan Cooper
Mark Cooper
Sally Cooper
John Cooper
Stanley Mackinnon
David Kellett
Larry Musselman
Exhibits:
Medical Brief filed on behalf of the Applicant
Letter from Larry G. Musselman, Branch Manager, Lindsey Morden Claim Services Limited, dated April 12, 1993
Letter from Larry G. Musselman, Branch Manager, Lindsey Morden Claim Services Limited, dated July 14, 1993
Letter from B.W. Brucker, Fellowes, McNeil, Barristers-at-Law, dated March 30, 1994
Report from Jan King, Consultant, Lindsey Morden, Health & Rehabilitation Services, dated June 2, 1993
Report from Jan King, Consultant, Lindsey Morden, Health & Rehabilitation Services, dated July 7, 1993
Income Tax Return of Mark Cooper for 1991
Income Tax Return of Mark Cooper for 1992
Application for Accident Benefits, date-stamped June 22, 1992
Transcript of Examination For Discovery in the matter of Mark Cooper v. Dirk Veenendaal, held on June 11, 1993
Videotape filed on behalf of the Insurer
Employer's Confirmation of Income, dated July 2
Automobile Accident Report (handwritten and typed form)
Evidence and Findings:
Mr. Cooper was 27 years old at the time of the accident. While riding his motor bike, he was struck by a car, and suffered a severe fracture to the left ankle. It is recognised that the injury has resulted in a permanent impairment.
A. Mr. Cooper's Employment Status at the Time of the Accident:
i. Summary:
Mr. Cooper claims that at the time of the accident he was employed with Dave's Auto Trim, a car upholstery business. The owner of the business, Dave Kellett, denies that Mr. Cooper was working there at the time of the accident, but states that Mr. Cooper had arranged to do a week's worth of work for him, starting later on.
Mr. Cooper claims that, because he was working, he qualifies for employment-related weekly income benefits under section 12 of the Schedule. If section 12 is the relevant section, his entitlement is based on his ability to return to work.
Applicants must meet the qualifications set out in section 12(2), to be eligible for benefits:
He or she must have been at the time of the accident,
i. employed or self-employed;
ii. on a temporary lay-off; or
iii. entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.
Applicants may also qualify for section 12 benefits if they establish a certain record of employment or self-employment within the twelve month period before the accident. Mr. Cooper did not have the necessary record of employment.
Even if applicants are not working at the time of the accident, they still qualify, if they can show some written evidence that they had an offer of employment.
At the hearing, Mr. Cooper insisted that he was actually working at the time of the accident, and that he did not have an offer of work to start later on. I have proceeded on this basis.
Applicants who do not qualify under section 12 fall within a different benefit category under section 13. The criteria for entitlement to these benefits is not linked to employment but to the performance of normal tasks and activities, and the benefits are flat-rate rather than earnings-related.
In Mr. Cooper's case, there is not much difference in the amount he would get under section 12 or section 13. However, it is more likely that he would be eligible for benefits under section 12 than section 13. The former is based on his ability to return to a particular job, while the latter test is more broad, based on his ability to carry out his normal, day-to-day, tasks.
Similarly, whether Mr. Cooper falls under section 12 or section 13 may have some significance in determining appropriate vocational rehabilitation and re-training options, although, in every case, the test is whether the proposed re-training is reasonable in all the circumstances.
ii. Findings:
Mr. Cooper and Mr. Kellett both testified. Mr. Cooper introduced a number of witnesses to substantiate his version of events: his uncle, his parents, and a family acquaintance. I also heard evidence from the insurance adjuster. There were numerous conflicts and contradictions in the testimony of witnesses in this case - it is fair to say that the evidence was all over the map.
Mr. Cooper had been working intermittently since graduating from vocational school in 1983. He worked as a bottle sorter for a soft drinks company for a couple of months. In 1984, he started doing jobs from time to time at Dave's Auto Trim, a car re-upholstery business, that is owned and operated by Dave Kellett. When a job required two people, or Mr. Kellett needed help, he hired Mr. Cooper.
Mr. Kellett repairs car and boat upholstery. The work involves removing ripped seats or convertible car or boat tops, and repairing them by sewing new pieces. The upholstery is then replaced in the vehicle. He also re-upholsters dashboards and door panels.
Mr. Kellett does all the sewing on an industrial sewing machine in his workshop. When he hired Mr. Cooper's services, it was Mr. Cooper's job to remove the torn upholstery from the car and replace the re-sewn part.
Mr. Kellett kept no employment records. He paid Mr. Cooper by the job, in "cash". He made no employee deductions. Payments were made "under the table". Mr. Cooper testified that Mr. Kellett wanted to avoid all the paperwork involved in dealing with the government.
Mr. Cooper indicated that he disagreed with the arrangement, and felt so strongly about the fact that Mr. Kellett was not making any deductions on his behalf, that he quit his employment several times. (Mr. Kellett adamantly denied this). However, Mr. Cooper did not declare the income he earned on his own income tax returns.
In turn, Mr. Kellett testified that he did not remit any deductions for Mr. Cooper because he regarded Mr. Cooper as an "independent contractor", subcontracting for each job. He admitted that he came up with this designation on his own.
Mr. Kellett stated that he valued each job based on a set hourly rate. He paid Mr. Cooper a flat-rate sum for each job. For example, Mr. Cooper stated that replacement of the top of a Mustang convertible car would take two days, and he would receive, say, $100 for it.
Dave Kellett testified his work was seasonal; it was busy in the summer, but quiet in winter. He testified that he hired Mr. Cooper for a day or two a week, according to the availability of work. He testified that he hired Mr. Cooper during a number of months in 1985, 1986 and 1988, but did not use Mr. Cooper's services in 1989, 1990 or 1991.
Mr. Cooper suggested that he worked more regular hours than his employer stated, a 40 hour, four or five day work week, for weeks at a time. He testified that he was paid on a piecework basis, by the job, at minimum wage rates.
In late 1989, Mr. Cooper got a job as a cleaner with Modern Building Cleaning Inc. He worked there until April 29, 1991, and did not work for Dave Kellett during this time. Mr. Cooper testified that he worked a regular, full-time, 40 hour work week at the minimum hourly wage throughout the year and a half he worked for the company. However, the evidence suggests that the employment was perhaps not as regular as Mr. Cooper indicated. A T4 Statement of Remuneration from Modern Building Cleaning Inc. for 1991 (marked Exhibit 7), showed gross employment income of only $1,001.75 for the four months worked in 1991.
Mr. Cooper left Modern Building Cleaning Inc. on April 29, 1991, under circumstances which are in some dispute. For approximately a year afterwards, he was unemployed and received unemployment insurance benefits. As a condition of receipt, he had to file cards on a regular basis with the employment centre, indicating that he was ready, willing and able to work.
Mr. Cooper testified that he did not work for Dave Kellett after leaving the cleaning company. However, the evidence is that the workshop was a popular place for people "to hang out". It appeared that people were constantly popping in and out. Mr. Cooper testified that he would stop at the shop and talk to Mr. Kellett "all the time".
Mr. Cooper testified that at some point when Mr. Kellett found out that he was no longer working, he called him to offer him work. Mr. Cooper testified that he worked for Mr. Kellett for "a week or so" before the accident, doing the same job he had done before. He was vague as to the starting date and the period of time worked.
Mr. Cooper testified that he worked every day, starting at around 8:00 to 9:00 a.m., and was paid by the job at the minimum wage of "$6 something". He estimated that he received $200 to $250 a week.
Mr. Cooper testified that he continued to receive unemployment insurance benefits while he was working, although knew that he was not entitled to the benefits if he worked. The evidence indicates that his benefits were about to expire around the date of the accident. (Exhibit 4)
Mr. Cooper testified that, on the day of the accident, he worked until 3:00 p.m. He left work early to go and pay his automobile insurance premium, as he had just been paid. The accident happened on the way.
Shortly after the accident, Mr. Cooper met with Larry Musselman, an adjuster with Lindsey Morden, Claims Services Limited at his own home. Mr. Musselman testified that Mr. Cooper told him that he was unemployed at the time of the accident - he was supposed to start work at Dave's Auto Trim later that day, but was not able to do so because of the accident. Mr. Musselman left Mr. Cooper with an application form for benefits, and a form for Mr. Kellett to sign, both of which were completed and returned. The application for accident benefits is marked Exhibit 9. In this form, Mr. Cooper indicated that he was "unemployed" at the time of the accident. He also marked the box stating that he "was entitled to start work within 1 year".
Mr. Cooper also returned a Confirmation of Income form, that had been completed by Mr. Kellett. It is marked Exhibit 12. In the form, under "Job Description", Mr. Kellett indicated that Mr. Cooper "was to start 1992/5/18 (?)" in full-time work, at a salary of $7.00 an hour. Under "Gross Weekly Income Last 4 Weeks Preceeding Accident", he put "$280" under Week 1, followed by the comment "was to start work for me". Under "Gross income for 52 Weeks Preceeding Accident - No. of weeks Worked" he wrote: "Nil ?".
Mr. Kellett testified that he had a job coming up that needed two people, and would take about a week. He offered the work to Mr. Cooper. He had no work for him after that job, and did not commit to providing work for any set period of time. He estimated payment at $280, based on a $7.00 an hour rate. Mr. Kellett testified that he had indicated that the work was "full-time" employment rather than "self-employed" because he hoped to have more work for Mr. Cooper.
Mr. Kellett denied that Mr. Cooper had started the job before the accident or had worked for him since 1988.
Mr. Cooper testified that he told Mr. Musselman that he was working "under the table" at their meeting. He testified that he indicated that he was unemployed on the application form, because he was working illegally and receiving unemployment benefits. He was afraid of repercussions from the federal authorities. He stated that Mr. Kellett, likewise, pretended that Mr. Cooper had not yet started work with him, because he was not making any deductions. Mr. Cooper also explained that he marked the box on the application form indicating that he "was entitled to start work within 1 year", because he felt that he could have worked at any number of jobs, if he had not been hurt, and not because he had an offer of work from Dave's Auto Trim.
Alan Cooper, Mr. Cooper's uncle, worked in the family painting business, which was located immediately behind the premises of Dave's Auto Trim. Alan Copper testified that he saw his nephew on the day of the accident. Mark Cooper dropped in at lunchtime, and told him that he had been paid and was going to pay his automobile insurance. Alan Cooper saw his nephew going into Dave's Auto Trim. He also testified that he was at the business between 8:00 and 8:30 a.m. each morning, and observed his nephew going into the workshop every day for about a week before the accident. Alan Cooper also testified that he knew that Dave Kellett and his nephew were friends, and that it was possible that Mark Cooper was just visiting the workshop rather than working there.
Mark Cooper's parents testified that their son was working for Dave Kellett before the accident. Sally Cooper stated that she thought it was for about "two to three weeks", while John Cooper described it as "a good few weeks".
Mrs. Cooper testified that she recalled that she got her son up from bed to go to work on the day of the accident. She testified that, ever since Mark had worked for Dave Kellett, she would prepare lunch for him. His father always returned home for lunch, and, afterwards, would deliver Mark's lunch to him at the workshop, which was five minutes away. John Cooper testified that he dropped in to see Mark at the workshop, and spoke to Dave Kellett on many occasions. Mr. Cooper stated that Dave Kellett had a poor record of paying wages when they were due, and he had to lend his son money to tide him over the week-end. He asked Dave Kellett why the payments were late for a couple of weeks.
Stanley Mackinnon also testified on behalf of Mr. Cooper. He worked in banking - first as a teller and subsequently as a manager - before retiring, and later bought and sold investment properties. He has known Dave Kellett for 15 years and the Cooper family for 7 to 8 years.
Mr. Mackinnon testified that he used to drop into the workshop every day but recently had stopped coming as frequently as before, because he did not wish to expose his young child to the language used at the shop. He stated that a "crowd hangs out" at the workshop, although he later stated that not a lot of people were involved.
Mr. Mackinnon testified that he visited the workshop on the day of the accident, and saw Mr. Cooper working around a vehicle. He could not recall exactly what Mr. Cooper was doing, but he did not think that Mr. Cooper was just visiting. Several days later, he learned from an acquaintance that Mr. Cooper was involved in a accident. He remarked that it was a shame because he knew Mr. Cooper had just started work.
Mr. Mackinnon testified that he provided advice to Mr. Kellett. He said that Mr. Kellett called him and told him that Mark Cooper wanted verification of his employment status. When Mr. Mackinnon queried why he would not provide such verification, Mr. Kellett told him that "there was nothing in it for him" (ie. Mr. Kellett).
Mr. Mackinnon testified that Mr. Kellett was "not a bad guy", but he did not want to see anyone else get ahead. Mr. Mackinnon asserted that Mr. Kellett abused his employees and stated that he "spat on his newspaper" at work rather than let someone else read it.
In turn, Mr. Kellett described Mr. Mackinnon as "an excellent person" but proceeded to make equally disparaging remarks about Mr. Mackinnon. He stated that he spoke to Mr. Mackinnon at Christmas 1993, but had not otherwise spoken to him since 1989. He said that Mr. Mackinnon had not been in his shop since then. He also said that Mr. Cooper's father did not come into the work shop, and that Alan Cooper had visited only once. He denied refusing to teach Mark Cooper how to sew because he was afraid of the competition, although he had reported that to Jan King, a rehabilitation consultant.
I cannot possibly resolve or reconcile all the contradictions in the testimony of the witnesses in this case, nor do I intend to do so.
The evidence was that Dave Kellett's workshop was a popular place for people to drop into and visit. According to Mr. Mackinnon, there was always a "crowd hanging out" there. Mr. Cooper himself testified that, when he was not working, he dropped into the workshop to talk to Dave Kellett, "all the time". The testimony given by the family members was equally consistent with this scenario, a fact acknowledged by the witnesses.
It is also not clear to me that Mr. Cooper's parents differentiated in their evidence between the period immediately before the accident, and the earlier times that Mr. Cooper worked for Dave Kellett. John Cooper, for example, stated that he would visit the workshop and talk to Mr. Kellett on "lots of occasions"; he said that he had talked to him about his son's wages being late. However, it was not clear that this happened in the brief period that his son claimed to have worked before the accident.
Mr. Mackinnon testified that he saw Mr. Cooper working around a car on the day of the accident, and did not think that he was just visiting. However, it is possible that Mr. Mackinnon was mistaken. I would add that it was clear to me from the cheerfully denigrating remarks that Mr. Kellett and Mr. Mackinnon made about each other, that there was a subtext to their relationship, to which I was not privy.
At best, the evidence of Mr. Mackinnon and the other witnesses is useful only in corroborating Mr. Cooper's own story. Ultimately, the case rests on the credibility of the evidence of Mr. Cooper and Mr. Kellett. I have grave reservations about the credibility of both gentlemen. However, Mr. Kellett has maintained a somewhat consistent position in respect to Mr. Cooper's employment status. Mr. Cooper, on the other hand, has provided different accounts of his employment status to different people, at different times.
He reported to the Insurer that he was unemployed at the time of the accident, but he "was entitled to start work within 1 year";
He told Larry Musselman, the insurance adjuster, that he was going to start work on the day of the accident, but had not done so. According to Exhibit 1, he told Dr. Sol Goldenberg the same thing in mid-March 1993;
According to Exhibit 5, he told the rehabilitation consultant that he had started work on the day of the accident and the accident occurred after he left the job. I note that he repeated this story in his examination for discovery in a third party action arising from the accident; and
He did not tell the unemployment insurance authorities that he was working, nor did he declare the income on his tax return.
At the hearing, Mr. Cooper was vague about when the employment with Dave Kellett started, the duration of it, and what he earned. He produced no documentary evidence whatsoever to support his case.
The documents that were produced contradicted his version of events. He completed an application for arbitration, in which he indicated that he was not working at the time of the accident. He subsequently testified that he took this position, although it was not true, because he was afraid of repercussions from the unemployment insurance and tax authorities. However, he also claimed to have reported the job to Larry Musselman, the adjuster. Why would he tell a representative of the Insurer that he was working, when he claimed to be too frightened to supply the same information on his application for accident benefits? In any event, his unemployment benefits would have expired around the time of the accident.
I do not accept Mr. Cooper's evidence about what he told Mr. Musselman, and I prefer Mr. Musselman's version of events, which is consistent with the information contained in Mr. Cooper's written application.
The truthfulness and reliability of Mr. Cooper's testimony is questionable on other grounds. His testimony about his employment history is inconsistent with the documentary evidence. His testimony at this hearing is not consistent with the sworn evidence he gave on his discovery. For example, at the hearing he testified that he had not tried to find other employment after the accident, but on his discovery he said that he had tried unsuccessfully to get into the Parks and Recreational Department of the City "a few times". There are other examples of similar inconsistencies.
Given the unreliability of Mr. Cooper's oral testimony, and the inconsistencies in the evidence before me, I am not persuaded that he was working at the time of the accident. The best that I can draw from all the evidence is this: he was unemployed, but had made some loose arrangement to do a job for Dave Kellett, with some expectation that more work might follow.
I find therefore that Mr. Cooper has not established that he was employed at the time of the accident.
Since Mr. Cooper has not established that he qualifies for weekly income benefits under section 12 of the Schedule, I must determine whether he is entitled to continuing disability benefits ("benefit if no income") under the terms of section 13 of the Schedule.
B. Entitlement to Benefits Under Section 13 of the Schedule
Mr. Cooper was hit by a car, while riding his motor bike. His left leg was pinned between the bumper of the car and his motor bike. Mr. Cooper suffered a serious closed fracture to the distal tibia and fibula of his left leg and ankle, with the fracture extending into the joint line. He was operated on, on an emergency basis, by Dr. Wong, who did an open reduction and internal fixation using plates and screws. He spent about eight days in hospital. He was treated postoperatively with a non-weight bearing cast for a month, and then had progressive weight bearing and physiotherapy.
The medical reports agree that Mr. Cooper has suffered a permanent impairment of the range of motion and functioning of his left ankle. They also agree that the injury will continue to be painful and that Mr. Cooper will suffer from arthritis in the joint in the future. The pain and stiffness in his ankle will likely get worse over time.
Mr. Cooper has a large, angry, scar over his left ankle, extending to the left leg. He suffers from daily pain and stiffness in his ankle. He cannot dorsi-flex his foot, and has limited plantar flexion. These are permanent limitations.
The doctors agree that Mr. Cooper cannot squat or run, and has difficulty with climbing stairs or ladders, with prolonged standing and with walking long distances. They agree that Mr. Cooper cannot do any work that involves these functions. Dr. Wong, in his report of February 10, 1994, noted that Mr Cooper had daily variable pain with the activities of daily living.
Mr. Cooper testified as to the ongoing pain at his left ankle and his limitations. He testified that he must side-step to go up and down stairs because he cannot bend his foot; he cannot kneel down or squat and has difficulty bending his knee. He cannot walk for more than 125 - 150 feet, without jabbing pains in his ankle, and cannot run.
I do not doubt that Mr. Cooper continues to suffer from daily pain and stiffness in his ankle, and that he suffers from the limitations described above. It is clear that he is precluded from working in jobs that involve those functions. This probably rules out the work at Dave's Auto Trim. Unfortunately for Mr. Cooper, it appears that his present condition will not improve.
The issue before me, however, is whether Mr. Cooper "suffers substantial inability to perform the essential tasks in which he would normally engage". To determine this, I must compare Mr. Cooper's tasks of daily living prior to the accident with his post-accident tasks after July 1993, which is when benefits were terminated.
Aside from his evidence about working for Mr. Kellett, which I have not accepted, Mr. Cooper was unemployed for the year before the accident. He spent his time participating in social and sporting activities. He lived at home where his mother took care of the meals and the housechores. He stated that he "hung out" at Dave's Auto Trim and with his friends, rode his motor bike and went fishing.
In addition, a report, marked Exhibit 6, prepared by Jan King, a rehabilitation consultant with Lindsey Morden, Health & Rehabilitation Services, listed a number of pre-accident activities that Mr. Cooper participated in. These included water skiing, baseball and running, on a weekly basis, and attending a gun club. I heard no evidence from Mr. Cooper about these activities.
Mr. Cooper testified that, after the accident he continued to go out with friends. He bought a van, which he drives, presumably to replace the motor bike. He has no trouble driving, and was able to drive the distance from Sarnia to Toronto to help a friend move. He also bought a motor boat with a trailer, and enjoys boating with his brothers. He spends a lot of time fishing, as he did beforehand. According to the rehabilitation report, as of July 7, 1993, he reported being unable to water ski, play baseball, or run. The report indicated that Mr. Cooper tried to go shooting once, but was uncomfortable because he could not stand in one position for long.
The report also indicated that Mr. Cooper still played golf but used a cart to get around. Mr. Cooper denied that he had played golf since the accident, or that he had told the rehabilitation consultant otherwise. Given my reservations about the general credibility of Mr. Cooper's testimony, I prefer to rely on the report of Ms. King which was also signed by Mr. Cooper, himself.
As stated above, Mr. Cooper cannot walk for long distances, or go up and down stairs easily. However, he is able to take care of his needs, and is completely independent in looking after himself.
Although Mr. Cooper cannot do some of the more active sports activities he enjoyed before the accident, since mid-July 1993, he has been able to perform the bulk of his usual tasks and activities, although with discomfort and some difficulty. Therefore, Mr. Cooper has not established that he suffers substantial inability to perform his normal, essential tasks.
Expenses:
Section 282(11) of the Insurance Act confers a discretion on me to award an applicant his or her expenses. These expenses have generally been awarded, regardless of the outcome of the arbitration, unless the applicant's case was found to be frivolous or vexatious, or the applicant unduly prolonged the arbitration process.
I accept that Mr. Cooper suffered a significant injury in the accident and continues to experience substantial pain and permanent limitations. However, Mr. Cooper was not credible or forthright in his testimony about his employment, and most of the case that he presented here was, in my view, without any merit. In all of the circumstances, I have determined that Mr. Cooper should not be awarded his expenses.
Order:
Mr. Cooper does not qualify to receive weekly income benefits under section 12 of the Schedule, on the basis that he was employed or self-employed at the time of the accident.
Mr. Cooper is not entitled to weekly benefits under section 13 of the Schedule, from the date benefits were terminated on July 15, 1993 and thereafter.
Mr. Cooper is not entitled to the expenses he incurred in respect to this arbitration.
March 6, 2022
Susan Naylor
Arbitrator
Date