Neutral Citation: 1994 ONICDRG 21
File No. A-000389
ONTARIO INSURANCE COMMISSION
BETWEEN:
GARY T. ROZEK
Applicant
and
METROPOLITAN INSURANCE
Insurer
DECISION
Issues:
The Applicant, Gary T. Rozek, was involved in motor vehicle accidents on October 9, 1990 and October 16, 1990. He initially applied for and received rehabilitation benefits from his insurer, Metropolitan Insurance, under Ontario Regulation 672.1 In December 1990, Mr. Rozek applied to Metropolitan Insurance for weekly income benefits under section 12 of the Schedule. He was paid weekly income benefits of $275.54 until April 9, 1991, when they were terminated.
Mr. Rozek claims that his weekly income benefits should not have been terminated because he continued to be eligible. The parties participated in mediation, but the dispute was not resolved. Mr. Rozek then applied for arbitration under the Insurance Act.
The issue in this hearing is:
Is Mr. Rozek entitled to weekly income benefits under section 12 of the Schedule for any period after April 9, 1991?
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the arbitration.
Result:
Mr. Rozek is not entitled to weekly income benefits for any period after April 9, 1991.
Mr. Rozek is entitled to his expenses related to this arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.
Hearing:
The hearing was held in Windsor, Ontario, on November 15, 16 and 17, 1993, before me, David R. Draper, arbitrator.
Present at the Hearing:
Applicant: Gary Rozek
Applicant's Representative: Richard A. Dinham, Barrister and Solicitor
Insurer's Representative: James Dunn, Barrister and Solicitor
Witnesses:
Gary Rozek, Applicant
Dr. D.B. Franchi, Applicant's family doctor
John Horvath, Applicant's co-worker
Susan Rozek, Applicant's spouse
Dr. Fernando, Applicant's psychiatrist
Exhibits: 36 exhibits were filed and are listed in Appendix 1.
Reasons for Decision:
1. The Background
Mr. Rozek was born in 1957 and is 36 years old. After completing grade 13 in 1977, he worked in an unskilled position at a car dealership and then as a security guard. In September 1982, he was married. His wife, Susan Rozek, continued to work at her full-time position at a financial investment firm.
In the early 1980s, Mr. Rozek had a number of short-term jobs and periods of unemployment. Starting in approximately 1985, he earned his living delivering the Globe and Mail newspaper during the night and early morning hours to businesses, homes and retail boxes. He also has had a long involvement in taxidermy, first as a hobby and later as a small business.
Mr. and Mrs. Rozek's daughter was born in May 1987. Because Mr. Rozek was home during the day, he took on the primary responsibility for child care and meals, and did his share of the other household chores.
Mr. Rozek testified that in or about February 1990, he stopped delivering the Globe and Mail because he was not making much profit. At about the same time, Seminole Management was winding down its operations at a large automobile parts plant. Mr. Rozek knew the owner, Mr. Trichli, who decided to hire some independent security guards at minimum wage in place of the security company that he had been using.
Mr. Rozek started at Seminole Management on the night shift on March 31, 1990. He testified that he usually worked by himself on the night shift and that he typically worked 52 hours a week. I accept the submission made on behalf of Metropolitan Insurance that it is difficult to reconcile this number of hours with the income declared in Mr. Rozek's 1990 income tax return. However, I found the evidence of Mr. Rozek and Mr. Horvath, his co-worker, to be generally credible and accept that his normal work week at Seminole Management was at least forty hours.
I find that prior to the accidents, Mr. Rozek was in good health, both physically and emotionally, and had no difficulty with the duties of his job at Seminole Management. He was an active person who participated occasionally in recreational sports and other physical activities. In 1989, he had a problem with his foot, but this appears to have been successfully treated.
Mr. Rozek's first accident occurred on October 9, 1990. He was driving in the curb lane. The car behind him moved to the left lane to pass, but clipped the left rear of his car. The accident report indicates that there was no damage to Mr. Rozek's car, but approximately $900 damage to the other car.
Mr. Rozek drove himself to Grace Hospital and was seen in the emergency department. He complained of pain in his neck and lower back. His cervical and lumbar spine were x-rayed, but no abnormalities were found. He was diagnosed as having a "trapezius and lumbar strain".
Two days later, Mr. Rozek saw Dr. Franchi. At the time of the accident, Mr. Rozek did not have a regular family doctor. He had seen Dr. Franchi previously at a medical clinic, but Dr. Franchi had since opened his own drop-in clinic.
Mr. Rozek complained to Dr. Franchi of headaches and pain in his neck, back and left shoulder. Dr. Franchi prescribed analgesic and anti-inflammatory medication, and recommended physiotherapy. He testified that it is his normal practice to suggest physiotherapy, but to leave it to the patient to arrange for the particular program.
On October 12, 1990, Mr. Rozek started going to Essex Physiotherapy for approximately thirty minutes a day. At some point, he applied to Metropolitan Insurance to pay for the physiotherapy treatment. Metropolitan Insurance accepted his claim and paid the invoices from Essex Physiotherapy. Mr. Rozek continued to work the night shift at Seminole Management and, therefore, did not apply for weekly income benefits.
On October 18, 1990, Mr. Rozek was involved in a second accident, while on his way to physiotherapy. He was stopped at a red light when his vehicle was struck from behind. According to the police report, there was $50 damage to the rear of his car and $300 damage to the front of the other car.
Instead of continuing on to physiotherapy, Mr. Rozek drove to Dr. Franchi's office. He complained of severe neck and back pain, headaches and dizziness. Dr. Franchi testified that the second accident aggravated Mr. Rozek's injuries. Further x-rays were taken, but no bony abnormalities were found. Dr. Franchi advised Mr. Rozek to continue with medication and physiotherapy.
Mr. Rozek continued to work and attend Essex Physiotherapy after the second accident, although his injuries interfered with his work to some extent. He sometimes had to lie down between his rounds due to headaches and pain in his neck and back. I also find that he missed some days of work. Mr. Rozek was uncertain about the number of days he missed, but on November 6, 1990, he reported to Dr. Franchi that he was unable to do his job, and Dr. Franchi gave him a medical note.
On November 6, 1990, Dr. Franchi also recorded that Mr. Rozek was experiencing numbness in his arm and leg. The doctor explained that because numbness is not normal in whiplash injuries, he was concerned about possible nerve damage. Therefore, he arranged for an examination by a neurologist, Dr. Chakravarthi, on December 28, 1990.
In the meantime, Seminole Management shut down production at the plant on or about November 16, 1990. Mr. Rozek and the other security guards continued to work because significant assets remained at the plant. On or about December 5, 1990, however, Seminole Management laid off all of the security guards, including Mr. Rozek.
In my view, it is clear that the primary reason Mr. Rozek stopped working at Seminole Management was because he was laid off, not because he was unable to do the job. In his evidence, he acknowledged that he stopped working due to the lay-off, although he said that he was feeling "achy and sore." He also testified that he applied for other jobs. His wife's understanding was that he stopped working due to a lay-off, or because they lost the contract.
At about the same time he was laid off, Mr. Rozek applied to Metropolitan Insurance for weekly income benefits under section 12 of the Schedule:
12(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment ...
In order to be eligible for weekly income benefits, therefore, Mr. Rozek had to establish that as a result of physical, psychological or mental injuries that he suffered in the accidents, he was substantially unable to perform the essential tasks of his employment as a security guard.
Mr. Rozek saw Dr. Franchi on December 5, 1990, his last day of work, and asked him to complete a Medical or Psychological Report. In his evidence, Dr. Franchi acknowledged that although he knew Mr. Rozek was a security guard, he was not aware of his specific duties, or that he had just been laid off. Although his clinical notes indicate that there was no change in Mr. Rozek's neck or back from previous visits, Dr. Franchi stated on the form that Mr. Rozek would not be able to return to work for approximately four to six months.
Mr. Rozek also completed a questionnaire for Metropolitan Insurance, dated December 19, 1990, stating: "I find it hard to walk constantly, because of my sore lower back and my numbness in my legs." I note, however, that his employer clearly indicated on another form that his status was "terminated," rather than "on disability leave."
On the basis of the material provided by Mr. Rozek, Metropolitan Insurance started paying him weekly income benefits of $275.45 a week. His initial eligibility for weekly income benefits is not in dispute.
Dr. Chakravarthi completed his consultation report to Dr. Franchi on January 16, 1991. He did not find any nerve damage and concluded:
Clinical examination is in favor of whiplash injury, mostly muscular. He would be advised to go on physiotherapy and as there are no neurological signs, I have not planned on any further investigations. I reassured him that most of these pains take a prolonged period of time, sometimes up to two years, and he would need to resort to continuous exercise programs, mostly swimming.
Mr. Rozek continued to see Dr. Franchi and to attend Essex Physiotherapy. The billings from Essex Physiotherapy indicate that he had 12 physiotherapy sessions in October 1990, 19 in November 1990, 15 in December 1990, 18 in January 1991 and 20 in February 1991. Unfortunately, the physiotherapy was passive, rather than incorporating the type of active exercise recommended by Dr. Chakravarthi. I also find that there was little, if any, direct communication between Essex Physiotherapy and Dr. Franchi about Mr. Rozek's treatment.
Metropolitan Insurance arranged for Mr. Rozek to be examined by Dr. R.A. Haliburton, an orthopaedic surgeon, on February 19, 1991. Dr. Haliburton reported that "the orthopaedic examination today is entirely normal except for pain with movement in his neck and lower back and tenderness where he is symptomatic." He concluded that:
Opinion: On the basis of my clinical review of Mr. Rozek today it is clear that he did not sustain serious injury to his spine or extremities in the motor vehicle accidents that occurred last October. He has had a soft tissue injury with no serious overtones. There should be no need for further investigation or serious treatment. His disability is largely subjective and there is a paucity of abnormal orthopaedic findings. He certainly does not appear to be very disabled at this time and in my opinion he should soon be able to return to his previous employment as a Security Guard. By soon, I mean within three to six weeks.
Metropolitan Insurance also asked Dr. Haliburton for an opinion about the need for Mr. Rozek to continue with physiotherapy. On March 12, 1991, he reported that in his opinion, physiotherapy was medically necessary until mid-March 1991.
Based largely on Dr. Haliburton's reports, Metropolitan Insurance terminated Mr. Rozek's weekly income benefits, effective April 9, 1991.
2. Mr. Rozek's Eligibility for Weekly Income Benefits After April 9, 1991
Mr. Rozek claims that he continued to meet the test for eligibility in section 12 of the Schedule after April 9, 1991 and, therefore, his weekly income benefits should not have been terminated. In order to be successful, he must establish that as a result of his two accidents, he suffered physical, psychological or mental injuries which resulted in his being substantially unable to perform the essential tasks of his employment as a security guard.
a) The essential tasks of Mr. Rozek's employment
According to section 12 of the Schedule, the job tasks to be considered are Mr. Rozek's pre-accident tasks as a security guard, even if no job is available. One of the obstacles that Mr. Rozek faces in establishing his eligibility is that his job at Seminole Management was not particularly demanding.
Mr. Rozek's job involved walking around a large plant, including upstairs (approximately 25-30 stairs) and outside. No lifting, bending or squatting was involved. The evidence about how often rounds were to be done was somewhat inconsistent, but I find that the guards were expected to make a round at least once an hour. Mr. Rozek testified that a round generally took 20-25 minutes. According to Mr. Horvath, one of the other security guards, a normal round took 15-20 minutes. In either case, they had time between their rounds to relax, and were provided with a small office for this purpose.
I note that Mr. Horvath is over sixty years old and not in very good health. He testified that he was unable to work on Mr. Trichli's farm because of problems with his leg, his back and his eyes. However, he was able to work as a security guard, doing the same tasks as Mr. Rozek, until November 1990, when the condition of his eyes deteriorated.
b) The medical evidence
The various doctors agree that as a result of the two accidents, Mr. Rozek suffered soft-tissue injuries, without neurological or orthopaedic complications. Despite expectations that his symptoms would resolve over time, Mr. Rozek has continued to complain of pain in his neck, back, arms and legs, and of headaches. More recently, he has also complained of being depressed.
Dr. Franchi testified that after the accidents, he became Mr. Rozek's family doctor and acknowledged that, as such, he was responsible for organizing and keeping track of his care. The nature of Dr. Franchi's practice, however, made this difficult. He runs a very busy drop-in clinic, seeing an average of seventy patients a day. Because he does not set up specific appointments, it was Mr. Rozek who determined when to seek medical attention, resulting in somewhat erratic visits.
Since December 1990, Dr. Franchi has consistently expressed the opinion that Mr. Rozek is unable to work. This is clearly contrary to Dr. Haliburton's opinion that he would have been able to return to work as a security guard by April 1991.
In his testimony, Dr. Franchi explained that he was faced with conflicting opinions from Dr. Chakravarthi and Dr. Haliburton. The conflict, however, is not obvious to me. Both specialists accepted that Mr. Rozek was still symptomatic. Dr. Chakravarthi recommended active therapy in order to deal with Mr. Rozek's symptoms. He did not express an opinion about whether the symptoms prevented Mr. Rozek from working. On the other hand, Dr. Haliburton addressed the issue of work and concluded that nothing prevented him from returning to work.
After Mr. Rozek received Dr. Haliburton's report, he went to see Dr. Franchi on March 18, 1991. He said that he did not feel that he was able to return to work and wanted another opinion. Mr. Rozek specifically asked for a referral to Dr. Rodrigues, a rheumatologist whom he had seen in 1989 and who was currently treating his wife. He testified that he needed a report to counteract the report of Dr. Haliburton. Dr. Franchi arranged an appointment with Dr. Rodrigues for April 18, 1991.
On April 8, 1991, Mr. Rozek returned to see Dr. Franchi and said that he wanted to return to work, although it is not clear what type of work he was considering. Dr. Franchi, however, advised him not to. He testified that Mr. Rozek's motivation was good, but he did not think he would "do well."
It is difficult to understand why Dr. Franchi discouraged Mr. Rozek from returning to work. There was no indication from the specialists that Mr. Rozek risked further injury. Rather, their reports suggest that his restrictions were based on his pain and that he should remain as active as possible.
Dr. Rodrigues saw Mr. Rozek on April 18, 1991 and June 6, 1991. At the later visit, he told Mr. Rozek that he "must get enroled in an aqua fitness program" and that he could discontinue his present physiotherapy. Mr. Rozek testified that he was interested in following the suggestion about aqua therapy, but could not afford it. He thought that Metropolitan Insurance had refused to pay for aqua fit, but was unclear how he came to this conclusion. Dr. Franchi testified that he supported aqua fitness, but did not see it as his role to arrange it. He stated that in accident cases, either the patient or the insurance company should arrange for programs not covered by the Ontario Health Insurance Plan, and the insurance company should pay the cost.
Dr. Franchi testified that in June 1991, he first became aware that Mr. Rozek was having problems with his insurance benefits. At that time, he also began to record observations of anxiety contributing to "subclinical depression."
On or about June 21, 1991, Mr. Rozek applied for mediation of his dispute with Metropolitan Insurance. Also on June 21, 1991, eight months after the second accident, Dr. Franchi wrote to Metropolitan Insurance, as follows:
I have been Gary Rozek's family physician, and have been following him regarding injuries sustained as a result of two motor vehicle accidents that occurred October 9, and 18th, 1990. This man has sustained injuries to the neck and back and has been suffering from a chronic whiplash syndrome, chronic myofascial neck and back pain. It is my medical opinion that this man is totally disabled and incapacitated due to the injuries sustained as a direct result of these motor vehicle accidents and he is unable for work. Gary Rozek has been attending physiotherapy from October 16, to June 1991 on my advice. It is my medical opinion that these physiotherapy visits were necessary for his rehabilitation and treatment....
At this point in time Gary Rozek should be switched from traditional physiotherapy to aqua fitness in an attempt to further strengthen his neck and back and rehabilitate him.
Dr. Rodrigues prepared a report to the mediator, dated August 1, 1991, which concludes:
In closing, I would like to say that I feel that this patient has continued to be symptomatic with both neck and low back pain, presumably as a result of his motor vehicle accidents. As you know, these cases have variable recovery periods. It is also difficult to know to what extent one can expect recovery. It is somewhat early to give a long-term prognosis. I would feel that this patient's disability is mainly dictated by the amount of pain that he has. Conceivably from time to time, he may have exacerbations of his neck and low back pain with certain activities.
In my view, Dr. Rodrigues provided yet another opinion that Mr. Rozek's rehabilitation required a more active approach. Despite this, he continued to receive passive physiotherapy at Essex Physiotherapy through July 1991, paid by Metropolitan Insurance. Mr. Rozek did not get involved in aqua fitness, or start an active exercise program. There is also no indication that he received any guidance about pain management.
I find that as a result, Mr. Rozek limited his activities based on his pain. Mrs. Rozek's evidence was helpful in this respect. Although she is not a disinterested observer and acknowledged that she has a poor memory, I found her evidence straightforward and persuasive. I accept the general picture that she presented of a man whose activities and mood changed after the accidents and continued to get worse, not better.
Mrs. Rozek clearly expected Mr. Rozek to continue to take primary responsibility for child care and housework, as he had done prior to his accidents. Despite this strong motivation, Mr. Rozek did less after the accidents. Mrs. Rozek also provided convincing testimony that Mr. Rozek stopped doing things that he used to enjoy. Prior to the accidents, he had been "an athletic type." Afterwards, he was no longer involved in sports, and no longer used his bicycle and snowmobile.
Mr. Rozek saw Dr. Franchi once a month in August, September and October 1991. Dr. Franchi testified that he continued to believe that Mr. Rozek was "totally disabled" and should be off work. Despite this opinion, Mr. Franchi was not referred for any type of therapy. On November 1, 1991, Dr. Franchi noted that there was no change, and on November 15, 1991, he noted chronic neck and back pain.
Despite the lack of change noted in Dr. Franchi's clinical notes and records, Mr. Rozek started to work for the Canadian Liver Foundation on November 8, 1991. I find no evidence that Dr. Franchi was aware of Mr. Rozek's decision to return to work. In addition, Mr. Rozek did not see Dr. Franchi until January 8, 1992, the day before the Record of Employment indicates as his last day at the Canadian Liver Foundation.
On January 8, 1992, Mr. Rozek told Dr. Franchi that he had tried to work part time. He wanted a referral to another orthopaedic surgeon because he did not feel that his condition was improving. In cross-examination, Mr. Rozek stated that he needed a report from an orthopaedic surgeon because of Dr. Haliburton's report. Dr. Franchi referred him to Dr. Annisette, an orthopaedic surgeon, but could not arrange an appointment until July 16, 1992.
Dr. Franchi testified that he was not "overly concerned" about the lack of improvement because he had felt for a couple of months that Mr. Rozek was developing chronic pain syndrome. I find this difficult to understand. Various doctors had recommended that Mr. Rozek be involved in an active therapy program to deal with his pain. At this time, however, he had not been in any type of therapy for over five months.
It appears that Mr. Rozek did not see a doctor from January 8, 1992 to March 9, 1992, when he saw an associate of Dr. Franchi for his "chronic neck pain." On April 30, 1992, Mr. Rozek told Dr. Franchi that his pain had increased as a result of moving furniture. No change was noted in visits on June 22, 1992 and July 13, 1992.
Dr. Annisette examined Mr. Rozek on July 30, 1992 and concluded that no orthopaedic intervention was required. At the request of Mr. Rozek's lawyers, Dr. Annisette prepared a further report based on the same examination. The report, dated November 23, 1992, concludes:
Based on the length of time that has elapsed since this man's symptoms and his degree of symptomology still to date, I feel that he does indeed have a permanent serious impairment of a bodily function which has been caused by continuing injury which is physical in nature. As a result of this, he may no longer be able to work in something requiring him to be physically active such as a security guard. He may certainly be able to participate in something of a lighter nature but this would of course depend of his level of education and previous experience.
Dr. Annisette does not present a definitive opinion about Mr. Rozek's ability to return to work. He states only that Mr. Rozek may no longer be able to do a physically active job. It is not clear what tasks Dr. Annisette understood or assumed were involved in working as a security guard. In addition, he was not aware that Mr. Rozek was laid off on December 5, 1990 and that his job was no longer available. His report states that after the accidents, Mr. Rozek "kept on working as a security guard for about 2 months and finally had to be off because of pain in his neck and low back."
Dr. Franchi saw Mr. Rozek once in August and once in September. On September 29, 1992, he noted the possibility that Mr. Rozek was still showing "sub-clinical depression" and might have developed fibromyalgia. On November 26, 1992, Dr. Franchi saw Mr. Rozek and felt he was still unable to work.
In or about December 1992, over two years after the accidents, Mr. Rozek began to see another family doctor, Dr. Albus. He testified that he wanted a second opinion and a friend recommended Dr. Albus. Dr. Albus referred Mr. Rozek to at least three specialists, Dr. Fernando, Dr. Danial and Dr. Coulter.
Mr. Rozek saw Dr. Fernando, a psychiatrist, who sets out his observations in a report, dated January 30, 1993:
IMPRESSION: this man is presenting with dysthymic disorder with a moderate degree of anxiety and this is secondary to chronic pain and physical disability. He said he has been taking Tylenol #23 to 6 a day together with ASA 1 q.i.d. I have asked him to take Ativan 1 mg. only on a p.r.n. basis to relief anxiety. He could also benefit to some extent with behaviour modification, relaxation techniques and counselling. However, despite whatever treatment we might give him he could very well continue to have the psychological symptoms as long as he has chronic pain and physical disability. Considering the longstanding nature of his problems, I cannot be optimistic about the eventual prognosis at the moment.
For reasons that are not clear, Dr. Albus also referred Mr. Rozek to a second psychiatrist, Dr. Danial. Dr. Danial found him to be "extremely depressed" and in his report, dated February 10, 1993, stated: "Though patient did sustain a whiplash injury strain, his primary problem is depression."
Dr. Albus also referred Mr. Rozek to Dr. Coulter, a rheumatologist. Dr. Coulter determined that Mr. Rozek did not have fibrositis, but had "generalized chronic pain following a trauma and represents a very difficult therapeutic problem." He recommended a trial of medication and exercise, and concluded:
In essence, he has almost a no name condition that has no specific type of therapy but is non damaging and [patients] do best to swim against the stream here and need to be motivated to get out and do things. If he is waiting for a drug that will cure him he is likely to be disappointed for a long time.
In 1993, Dr. Franchi began to refer to Mr. Rozek's condition as chronic pain syndrome. He continued to believe that Mr. Rozek was unable to work. Mr. Rozek also continued to see Dr. Fernando, whose evidence I found to be clear and objective. It appears that Dr. Fernando was finally providing the type of counselling and encouragement that Mr. Rozek needed to help him deal with his symptoms.
In a report, dated April 19, 1993, Dr. Fernando found Mr. Rozek to be depressed, with impaired concentration:
Despite treatment this man could very well continue to have psychological symptoms as long as he is troubled with the chronic backaches, chronic headaches, and the physical disability. As a result of the psychological and the physical problems, in my opinion, he is totally disabled at the moment. As regards prognosis he could take one year or longer to make any form of significant improvement.
On May 7, 1993, Mr. Rozek received a traffic ticket. He reacted badly and Dr. Albus referred him to Dr. Fernando for a possible hospital admission. Dr. Fernando prepared a consultation note, which included:
This man is suffering from a dysthymic disorder and he also has chronic pain together with physical disability. I have asked him to continue with the present dosage of Prozac, Ativan, given him counselling about the situation and he seemed to be reassured. I did not see the need for admission and he has promised to keep his appointment with me at my office.
Metropolitan Insurance arranged for Mr. Rozek to see Dr. Lacerte, a specialist in physical medicine and rehabilitation, on November 3, 1993. He made the following diagnoses:
(a) Disease Diagnoses
Mild musculoligamentous injury of the cervical and lumbar spine with no evidence of structural changes or neurological deficits.
(b) Secondary Diagnoses
Mild deconditioning with no significant decreased flexibility or strength.
(c) Other Diagnosis
Chronic pain syndrome of unclear etiology.
Dr. Lacerte expressed frustration about the history of Mr. Rozek's treatment and the "wait and see" approach that he felt had been taken. He recommended that a return to work be viewed as the best therapeutic intervention, both from a medical and vocational rehabilitation status. He concluded:
It is very unfortunate that Mr. Rozek was not kept at work and it is my opinion he would have been medically fit to do so. The "wait and see" approach has no place in rehabilitation and in my opinion, he is medically fit to actively participate in a vocational rehabilitation program. The patient has not participated in pain education but is currently being followed by a psychiatrist who hopefully will be able to provide the necessary support during work re-entry. I believe that exposing him to moderately physically demanding tasks my [sic] exacerbate his symptoms but is not likely to cause structural damage or be harmful. Failing to do so at this point, would be reinforcing the idea that he is disabled which, based upon observable and measurable impairment, should [be] minimal.
c) Post-accident work
Although Mr. Rozek's initial eligibility for weekly income benefits is not in dispute, I believe that it is significant that he was able to work as a security guard until he was laid off, approximately two months after the second accident. It is also clear that despite Dr. Franchi's opinion that he has been unable to work since December 1990, he has done some work.
Mr. Rozek testified that he started looking for work even before his weekly income benefits were terminated on April 9, 1991. As stated above, he worked for the Canadian Liver Foundation starting on November 8, 1991. His job initially involved driving around to businesses picking up pledges. He stated that he worked part-time, from two to four hours a day, six days a week. He testified that his back and neck got very sore from all of the sitting. Despite this, I find that he did not visit Dr. Franchi during the time that he was doing the driving job.
In January 1992, he was given a supervisor's position at the Canadian Liver Foundation, but this only lasted approximately one week. Mr. Rozek stated that he could not concentrate and "just gave up." The Record of Employment indicates that Mr. Rozek was "dismissed," although I accept that this may been the result of his failure to show up at work.
In 1991, Mr. Rozek also worked for Executive Marketing Services. He explained that this was telephone work that he did at home for a couple of weeks. It is not clear why he did not continue with this work.
After the accidents, Mr. Rozek continued to do some taxidermy work, although both he and his wife testified that he did much less. His 1991 income tax return, however, shows $2,000 gross income from his taxidermy business. His declared gross income in previous years was only $535 in 1989 and $1,013 in 1990. In 1992, his declared gross income $850, less than in 1991, but not significantly different than 1989 and 1990. Mr. Rozek insisted that he reported his income accurately, but was unable to explain why his income tax returns do not reflect the significant decrease in activity in his taxidermy work that he claimed.
The most puzzling evidence is that Mr. Rozek's 1991 income tax return shows gross income of $2,793 from the Globe and Mail. His evidence was that he did not deliver papers after February or March of 1990, before he started working for Seminole Management. Based on his income from previous years, gross income of $2,793 would represent approximately two months of full-time work.
Mr. Rozek could not explain why this income was reported for 1991, but suggested that his accountant must have made a mistake. I find it difficult to ignore this income. Mr. Rozek's 1990 income tax return is dated April 19, 1991, more than a year after he says he last worked for the Globe and Mail. Presumably, he would have had records by that time of all of his income and expenses. His 1991 income tax return is dated April 28, 1992 and the accountant prepared a Statement of Income and Expenses for the Globe and Mail for 1991, just as he had in 1989 and 1990. The amounts for gross revenue and expenses for 1991 are all different than in previous years. I am simply not prepared to assume that the accountant made up these numbers.
In the summer of 1992, Mr. Rozek worked for K.G.A. Marketing for approximately one month. According to Mr. Rozek, K.G.A. Marketing paid him a commission for driving to businesses and collecting some type of information. He testified that he worked for approximately three hours a day, five or six days a week, for approximately one month, but found that it was "taking its toll." He also had a brief job through Polygon Personnel, earning only $76.38.
d) Mr. Rozek's credibility
The various doctors, including Dr. Franchi, agree that there are few, if any, objective findings to explain Mr. Rozek's complaints. Therefore, the doctors have had to rely on his description of his symptoms. The lack of objective findings does not preclude his eligibility, but it makes his credibility of central importance.
Although I found Mr. Rozek to be generally credible, I do not feel that I can rely entirely on his evidence. He acknowledged that he has a very poor memory and had trouble giving an accurate history. As discussed above, it is difficult to reconcile his evidence about his work history with his financial records. I am also concerned that he did not advise some of the doctors, including Dr. Franchi, Dr. Annisette, and Dr. Fernando, that he had been laid off on December 5, 1990 and could not return to work at Seminole Management. In addition, he suggested under oath in a discovery on June 22, 1993, that if he been physically able to do so, he could have continued working at Seminole Management for another two or three months.
Metropolitan Insurance presented videotape evidence from surveillance conducted on July 31, 1991, May 18, 1993, September 8, 1993, September 9, 1993, and September 14, 1993. The videotapes show Mr. Rozek involved in various activities, including walking, jogging approximately twenty steps, getting in and out of his car, driving, twisting his neck, reaching, bending and kneeling. Although none of the activities are particularly demanding or done quickly, there is no indication of any restriction in his movements.
The videotape evidence does not establish that Mr. Rozek was pain-free. As Dr. Fernando said, only he knows that. In my opinion, however, it does raise serious questions about whether the pain is disabling.
Dr. Fernando was shown parts of the videotape. He agreed that Mr. Rozek did not appear to be in distress. He also agreed that the activities were inconsistent with someone in severe pain, but said he never believed that Mr. Rozek was in severe pain. He stated that he might have "mild to moderate pain," but agreed that if he had seen the videotape earlier, he would have probed a bit more into the degree of pain.
When he was asked at the hearing if Mr. Rozek could return to work as a security guard, Dr. Fernando answered that it was a difficult question. He said that in his opinion, Mr. Rozek would have had difficulty at that time with a job that had a physical component or required concentration.
e) Conclusion
Mr. Rozek was injured in the two accidents in October 1990. I accept that he has continued to experience pain, particularly in his neck and lower back. Unfortunately, the persistence of his problems may be due, to some extent, to the fact that he was not involved in an organized, active treatment program. With the advantage of hindsight, I agree with the observations of Dr. Lacerte, the specialist in physical medicine and rehabilitation:
In my opinion, the management or lack of, in this particular case, has played a significant role in the observed medical and vocational outcome. The impairment evaluation also contrasts significantly with the alleged state of disability. I am also concerned with the presence of a disproportionate self perceived disability in light of very little or no impairment. I believe it is plausible that factors distinctive from the presence of minimal impairment are contributing significantly to the presently perceived disability.
Mr. Rozek is not eligible for weekly income benefits, however, based simply on the fact that he has not fully recovered. He is eligible only if his injuries make him substantially unable to perform the essential tasks of his pre-accident employment as a security guard. Given the minimal demands of his job, I am unable to conclude that Mr. Rozek met this test for any period after April 9, 1991.
It is difficult to imagine many jobs that would be more suitable to someone with Mr. Rozek's physical and psychological problems than his job at Seminole Management. He had to walk, but the rounds could be done at his own pace. Even if the rounds were done at a leisurely pace, he would have had time between rounds to rest. The job was not mentally demanding and because he worked alone, it was quiet. In fact, the duties of this job appear to involve precisely the kind of activity that the doctors have been recommending all along.
This is not to suggest that it would be easy for Mr. Rozek to return to work at this point. As set out above, Dr. Lacerte predicts that his symptoms might initially be exacerbated by "moderately physically demanding tasks." I am persuaded by the medical evidence, however, that Mr. Rozek should be physically active and that an initial period of adjustment is necessary. He would likely need guidance and support through the adjustment period. Fortunately, Dr. Fernando seems to be in a position to fill that roll.
I conclude, therefore, that Mr. Rozek is not entitled to weekly income benefits for any period after April 9, 1991.
4. Expenses
Mr. Rozek claims the expenses that he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
282 (11) The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990.
I conclude that I should exercise my discretion to award Mr. Rozek his expenses. The issues raised in this arbitration were legitimate and there was no suggestion of improper conduct in the hearing process. If the parties are unable to agree on the amount of the expenses, I remain seized of this matter and either party may apply for an assessment of the expenses.
Order:
Mr. Rozek is not entitled to weekly income benefits for any period after April 9, 1991.
Mr. Rozek is entitled to his expenses related to this arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.
March 8, 1994
David R. Draper Arbitrator
Date
APPENDIX 1
Exhibit 1
Report of Dr. S.C. Chakravarthi to Dr. D.B. Franchi, dated January 16, 1991.
Exhibit 2
Report of Dr. D.B. Franchi to the Ontario Insurance Commission, dated May 30, 1991.
Exhibit 3
Report of Dr. D.B. Franchi to Metropolitan Insurance, dated June 21, 1991.
Exhibit 4
Report of Dr. Jude Rodrigues to the Ontario Insurance Commission, dated August 1, 1991.
Exhibit 5
Report of Dr. Garth M. Annisette to Corrent & Macri, Barristers and Solicitors, dated November 23, 1992.
Exhibit 6
Consultation Record of Dr. F.P. Fernando, transcribed on January 30, 1993.
Exhibit 7
Report of Dr. Jacob Danial to Dr. W. Albus, dated February 10, 1993.
Exhibit 8
Medical Report to the Canada Pension Plan, completed by Dr. L. Fernando, dated April 19, 1993.
Exhibit 9
1989 Individual Income Tax Return of Gary Rozek, dated April 27, 1990.
Exhibit 10
1990 Individual Income Tax Return of Gary Rozek, dated April 19, 1991.
Exhibit 11
1991 Individual Income Tax Return of Gary Rozek, dated April 28, 1992.
Exhibit 12
1992 Individual Income Tax Return of Gary Rozek, dated April 26, 1993.
Exhibit 13
Report of Dr. R. A. Haliburton to Metropolitan Insurance, dated February 19, 1991.
Exhibit 14
Report of Dr. R.A. Haliburton to Metropolitan Insurance, dated March 12, 1991.
Exhibit 15
Report of Dr. Michel Lacerte to Samis, Blouin, Dunn, Barristers and Solicitors, dated November 11, 1993.
Exhibit 16
Transcript of the examination for discovery of Gary Thomas Rozek, dated June 22, 1993.
Exhibit 17
Application for Accident Benefits, undated, and an Authorization for Employment Information, dated December 3, 1990.
Exhibit 18
Forms from Metropolitan Insurance, completed by Gary Rozek and his employer.
Exhibit 19
Medical or Psychological Report, completed by Dr. Franchi on December 5, 1990.
Exhibit 20
Employer's Confirmation of Income, dated December 4, 1990.
Exhibit 21
Out-Patient and Emergency Record of the Grace Hospital, dated October 9, 1990.
Exhibit 22
Motor Vehicle Accident Report, dated October 9, 1990.
Exhibit 23
Motor Vehicle Accident Report, dated October 18, 1990.
Exhibit 24
Report of Dr. W. Keith Coulter to Dr. Wayne Albus, dated January 25, 1993.
Exhibit 25
Videotape taken on July 31, 1991 and May 18, 1993.
Exhibit 26
Videotape taken on September 8, 9 and 14, 1993.
Exhibit 27
Curriculum vitae of Dr. Donald Franchi.
Exhibit 28
The clinical notes of Dr. Donald Franchi with respect to Gary Rozek for the period from October 11, 1990 to June 14, 1993.
Exhibit 29
Report of Dr. Garth M. Annisette to Dr. D. Franchi, dated July 30, 1992.
Exhibit 30
Code sheet from the Ministry of Transportation for use with motor vehicle accident reports.
Exhibit 31
The curriculum vitae of Dr. Lal Fernando.
Exhibit 32
Consultation record, dated May 14, 1993, from Dr. Fernando.
Exhibit 33
Records of Metropolitan Insurance with respect to physiotherapy for Mr. Rozek.
Exhibit 34
Record of Employment, dated January 30, 1992, from the Canadian Liver Foundation.
Exhibit 35
The curriculum vitae of Dr. Michel Lacerte.
Exhibit 36
Record of Employment form from Employment and Immigration Canada.
In addition to the exhibits, the following documents were before the arbitrator:
Report of Mediator, dated August 28, 1991.
Application for Appointment of an Arbitrator, dated April 15, 1993.
Response by Insurer, dated May 4, 1993.
Letter, dated May 31, 1993, confirming the pre-hearing discussion held that day.
Letter, dated June 14, 1993, confirming the pre-hearing discussion held that day.
Letter, dated June 23, 1993, confirming the pre-hearing discussion held that day.
Letter, dated August 18, 1993, confirming the pre-hearing discussion held on August 17, 1993.