Neutral Citation: 1994 ONICDRG 67
File No. A-004777
ONTARIO INSURANCE COMMISSION
BETWEEN:
LUIS PAUVIF
Applicant
and
SUN ALLIANCE INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Luis Pauvif, was injured in a motor vehicle accident on December 10, 1992. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.1 Weekly income benefits were terminated by the Insurer effective April 8, 1993 on the grounds that Mr. Pauvif no longer qualified to receive the benefits.
Mr. Pauvif states that his disability continued beyond the termination date until August 29, 1993, when he returned to his pre-accident employment and claims entitlement to weekly benefits for this period. The parties were unable to resolve their disputes through mediation and Mr. Pauvif applied for arbitration under the Insurance Act.
The sole issue in this arbitration hearing is:
Is Mr. Pauvif entitled to weekly income benefits under section 12 of the Schedule for any period between April 8, 1993 and August 29, 1993?
The Applicant also claims interest on any outstanding amounts owing.
Result:
Mr. Pauvif is not entitled to weekly benefits for any period between April 8, 1993 and August 29, 1993.
Hearing:
The hearing was held in Toronto, Ontario, on April 11, 1994, before me, Asfaw Seife, arbitrator. The proceedings were recorded by Court Reporter, Terry Harris, of Victory Verbatim.
Present at the Hearing:
Applicant:
Luis Pauvif
Applicant's
G. Abols
Representative:
Barrister and Solicitor
Insurer's
F. G. Csathy
Representative:
Barrister and Solicitor
Insurer's
Edward Bodi
Officer:
Witnesses:
Dr. F. Patterson - Family Physician
Dr. J. Zeldin - Orthopaedic Specialist
Mr. I. Desrosiers - Driver of other car involved in the accident
Exhibits:
Exhibit 1
Agreed Statement of Facts about the Applicant's essential tasks
Exhibit 2
Joint Medical Brief
Exhibit 3
Surveillance Videotape
Relevant Legislation:
Entitlement to weekly income benefits is governed by the provisions of Section 12 of the Schedule. The relevant subsection 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 income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).
Therefore, I must decide whether, as result of injuries sustained in the motor vehicle accident of December 10, 1992, Mr. Pauvif suffered substantial inability to perform the essential tasks of his pre-accident employment during the period of time in question. In order to be successful, Mr. Pauvif must establish his claim on a balance of probabilities.
The Motor Vehicle Accident:
Mr. Pauvif's testimony about the accident was scanty; however, based on the testimony of the other witnesses, I understand what occurred was as follows:
The Ford mini-van which Mr. Pauvif was driving was stopped at an exit of a shopping plaza when it was rear-ended by the car driven by Mr. Desrosiers.
Mr. Desrosiers' car was travelling at a rate of 3 to 5 kilometres per hour (approximately the rate of normal walking speed) when the collision occurred. The road surface was covered with snow and ice, and as Mr. Desrosiers approached Mr. Pauvif's car, he applied his brakes fully to stop his car; but it skidded into Mr. Pauvif's car with its wheels locked.
Mr. Pauvif was wearing his seat belt and his brakes were on. He was jolted by the impact of the collision; his body did not strike any part of the mini-van. As a result of the collision, Mr. Pauvif's mini-van moved from six inches to a foot from where it had been standing before the accident. There was no damage to either vehicle and the accident was never reported to the police by either driver.
Mr. Desrosiers testified that immediately after the collision, he got out of his car to inspect the vehicles. He noticed Mr. Pauvif was over the steering wheel with his hand on the back of his neck.
Mr. Pauvif was upset; and when he asked him how he was, Mr. Pauvif told him he was in pain, but he did not tell him where it hurt. Mr. Desrosiers assumed it was his neck as he was holding it.
Mr. Desrosiers stated that he was surprised to see that Mr. Pauvif was hurt as he thought the accident was very minor. The person in the front passenger seat of Mr. Pauvifs mini-van seemed fine to Mr. Desrosiers, and neither Mr. Desrosiers nor his friend, who was seated in the front passenger seat of his car, sustained any injuries.
Mr. Pauvif's Essential Tasks:
Mr. Pauvif is a 28 year old man, married with two children. At the time of the accident, he was on a lay-off from his job with General Mills Canada Inc., where he had worked for over three years as a machine operator/line helper.
Mr. Pauvif testified that at General Mills he worked eight hour shifts, with two fifteen-minute breaks and thirty minutes for lunch. His tasks as a machine operator/line helper consisted of feeding cardboard boxes into a machine every five seconds, removing them from the machine after they have been processed and stacking them on a skid. Sometimes, he filled in as a spare person pushing a garbage cart, removing the garbage and keeping the lines clear.
The parties have jointly submitted a Functional Abilities Evaluation performed by Columbia Health Care, which outlines the physical requirements of Mr. Pauvif's pre-accident employment. Based on this document I find that the physical requirements of Mr. Pauvif's job to be as follows:
- Lifting from floor to bench height a weight of 40 lbs, and floor to upper shelf lifting a weight of 10 to 12 lbs.
- Carrying a weight of 30 lbs for approximately 2 steps.
- Pushing and pulling a garbage trolley with no specific force weight required.
- Overall strength level requirement was light to medium.
- When working as a machine operator, sitting was required for two to eight hours on a frequent basis. As a line helper sitting was for one hour at a time, also on a frequent basis.
- Standing and walking were variable and rated at the frequent level, especially if Mr. Pauvif was required to be a "spare".
- Stair and ladder climbing, crouching, overhead reach, and fingering were rated at the occasional level, while stooping, bending, reaching forward and handling were rated at the frequent level. Kneeling and crawling were not required.
Summary of Medical Evidence:
Mr. Pauvif did not seek medical assistance immediately after the accident; however, he testified that later the same day he went to the hospital because he felt pain in his neck, right shoulder and lower back. He did not wait to be seen by a doctor because the emergency section of the hospital was too crowded. The following day, December 11, 1992, he saw his family physician, Dr. Patterson.
Dr. Patterson testified that he has been Mr. Pauvifs family doctor since 1976. He stated that prior to the accident, Mr. Pauvif had no complaint of shoulder, back or neck pain.
Dr. Patterson testified that when he saw Mr. Pauvif on December 11, 1992, Mr. Pauvif complained of pain in the neck, bilateral shoulder pain and pain in the right sterno clavicular joint (where the collar bone joins the breast bone). Mr. Pauvif told him that he was involved in a car accident, however, the doctor was not aware of the nature and circumstances of the accident. In his report dated June 16, 1993, Dr. Patterson describes this first visit:
On examination, [Mr. Pauvif] was tender both trapezii muscles, neck rotation of movement was full with no tenderness, decreased rotation of movement right shoulder due to pain, right sterno clavicular joint was tender.
Dr. Patterson's diagnosis was myofascial strain to the neck and right shoulder. He prescribed pain medication for Mr. Pauvif. Dr. Patterson saw Mr. Pauvif on four more occasions in December, 1992. He had the same complaints. His x-rays were negative. Dr. Patterson prescribed an anti-inflammatory medication and referred Mr. Pauvif to physiotherapy.
On December 21, 1992, at the request of Mr. Pauvif, Dr. Patterson completed a medical report for the purposes of an application for accident benefits. In the report, Dr. Patterson estimated the duration of Mr. Pauvif's disability to be four weeks.
In January, 1993, Mr. Pauvif saw Dr. Patterson four times. Physiotherapy treatment which included heat, traction and exercise did not help him. He continued to complain of neck and shoulder pain, and in addition, he began complaining of headaches and dizziness, and, on January 12, 1993, he first complained of low back pain. On examination, the doctor found him still tender in those areas; however, abduction of the right shoulder had improved; the doctor said Mr. Pauvif could now raise his shoulder without pain to 90 degrees (right arm held out straight from his shoulder).
On January 21, 1993, Mr. Pauvif started to complain of paraesthesia (an abnormal sensation of burning, tingling and prickling) to the right thigh, radiating to his calf. The doctor said that he found this condition hard to relate to the car accident; although he indicated it is possible if the patient sustained an inflamed disc in the accident.
As the weeks went by, Mr. Pauvif's complaints of pain increased. On February 9, 1993, he complained of numbness on back of his right leg. On February 18, 1993, he complained of numbness on the inside of his right thigh. On February 23, 1993, abduction of the right shoulder was reduced to 45 degrees and Mr. Pauvif was still tender over the right shoulder area. On March 4, 1993, Dr. Patterson saw Mr. Pauvif, who continued to complain of his right shoulder. The doctor noted "right shoulder locked up on 1st - abduction 45 degrees - tender". He prescribed pain medication. The next day, on March 5, 1993, Mr. Pauvif came to see him again. This time Mr. Pauvif told him that the insurance company was following him and that he had reported the matter to the police. Dr. Patterson observed that Mr. Pauvif was anxious and scared. He prescribed some medication to help him calm down.
Dr. Patterson saw Mr. Pauvif on three more occasions in March, 1993, with his symptoms unimproved. The doctor formed the opinion that Mr. Pauvif was now suffering from anxiety due to surveillance.
According to Dr. Patterson, it was not until June, 1993 that Mr. Pauvif started to show a marked improvement. He could now move his right shoulder to 120 degrees abduction.
In his report dated June 16, 1993, Dr. Patterson concluded that, at the time of the accident Mr. Pauvif had sustained myofascial strain to his neck, shoulder and back; however, as of June 16, 1993, the doctor found that there was no organic basis for the complaint, rather "he has developed a chronic pain syndrome with symptoms of anxiety due to surveillance". Dr. Patterson estimated that Mr. Pauvif would be able to return to his pre-accident employment in July or August, 1993.
Dr. Patterson had some understanding of Mr. Pauvif's job requirements, however, he did not explain in his testimony how Mr. Pauvif's condition could interfere with his ability to work. Responding to the question by the Insurer's counsel, Dr. Patterson stated that he considered Mr. Pauvif disabled from carrying out his duties since he was not responding to analgesics and was experiencing pain.
In his testimony during cross-examination, Dr. Patterson explained that his diagnosis about pain was based on Mr. Pauvif telling him how he felt. He had conducted no objective tests for verification of pain such as feeling for muscular spasms, or the pin prick test to establish if a nerve was compressed. The doctor agreed that in light of the minor character of the accident and the lack of objective findings Mr. Pauvif might be exaggerating his symptoms.
Mr. Pauvif was examined by Dr. Zeldin, an orthopaedic surgeon, twice before the Insurer terminated his benefits: on February 2, 1993 and April 2, 1993. Dr. Zeldin, who saw Mr. Pauvif at the request of the Insurer, testified at the hearing. The two reports he prepared after each visit were also included in Exhibit 2.
Dr. Zeldin testified that when he first examined Mr. Pauvif in February, 1993, he got the impression of overreaction and exaggeration of response. The doctor found that Mr. Pauvif guarded motion of his back, however, straight leg raising was reasonably full and lower as well as upper limb reflexes, power and sensation were intact. He found no gross lower limb neurologic deficit. He recommended that Mr. Pauvif continue with his physiotherapy.
When Dr. Zeldin saw Mr. Pauvif again on April 2, 1993, Mr. Pauvif told him that he had not improved but indeed felt worse since he saw him last. He told him he continued to have ongoing complaints of pain in his neck, right thigh, leg and recurring headaches. He told him he felt tense and nervous.
Dr. Zeldin testified that Mr. Pauvif also told him he had acute pain when he walked more than a few minutes and he could not walk more than a half to one block at a time. He also told him he had difficulty in bending or sitting and he had difficulty in driving, and was experiencing a feeling of numbness in all of his fingers. The doctor noted that Mr. Pauvif walked hesitantly with a peculiar type of right-sided limp.
On examination, Dr. Zeldin found as follows:
The patient tends to guard motion of his neck. There is no spasm or tilt in the neck muscles. The patient raises the right arm to about shoulder level. He claims he has difficulty raising above this. I could get him to do so with a great deal of reluctance on his part. Upper limb reflexes are intact. The patient complains that he has no sensation to pin prick about the right neck, shoulder girdle and upper arm in a non organic distribution.
The patient guards motion of his back. He guards straight leg raising. He claims he does not feel pin prick throughout the right lower limb in a stocking distribution. There is no organic basis for such a finding and this, in keeping with the rest of the examination, suggests a very marked exaggeration of response and psychogenic overlay.
Dr. Zeldin concluded that at the time of the car accident, Mr. Pauvif sustained "a mild or at the most moderate" myofascial strain which is consistent with some pain and discomfort for a few weeks or at the most a few months. He found no structural damage and did not have a satisfactory physical explanation for Mr. Pauvifs ongoing complaints. He opined that these complaints have a substantial psychogenic rather than physical basis.
Dr. Zeldin was not cross-examined by Mr. Pauvifs counsel.
Videotape Evidence:
The Insurer submitted videotape evidence which depicts some of Mr. Pauvif's activities on February 25, March 1, March 3, and March 4, 1993. It shows Mr. Pauvif walking normally, without a limp, moving and bending, turning his head in all directions, driving his mini-van in forward as well as reverse directions. Mr. Pauvif appears able to accomplish all of these activities without any apparent discomfort or distress.
On March 4, the same day that Mr. Pauvif told Dr. Patterson that his right shoulder was "locked up" and had lots of pain moving his right arm, (in the doctors estimation not more than 45 degrees abduction), he is seen in the videotape lifting a baby stroller with the right hand to about shoulder level and placing it in his mini-van, extending his right arm above his head and pulling down the tailgate (rear door) of the mini-van and closing it, all of which he did without apparent pain or difficulty. (The right shoulder abduction in the closing of the tailgate was estimated by Dr. Zeldin, who viewed the videotape, to be about 120 degrees).
In the videotape, Mr. Pauvif does not appear to be hesitating or guarding motion of his shoulder, back or neck, as he did when he saw Dr. Zeldin on February 2, 1993, and April 2, 1993.
In cross-examination, Mr. Pauvif stated that he felt pain and discomfort while he did all of the activities shown in the videotape.
After reviewing the videotape evidence, Dr. Patterson stated that what he saw was not consistent with his notes of Mr. Pauvifs visit of March 4, 1993 although he admitted that it is possible for Mr. Pauvif to do all of the things shown in the videotape with pain.
Findings:
Both doctors agreed that at the time of the accident Mr. Pauvif sustained myofascial strains to the neck, right shoulder, and lower back areas.
Both doctors also agree that they could find no objective physical problems which would cause the pains that Mr. Pauvif complained about. In such circumstances, the credibility of the Applicant is crucial.
Virtually all of Mr. Pauvif's evidence about his injuries was elicited during his cross-examination by the Insurer's counsel. The only thing he said in examination-in-chief about his condition is that it was "in July, the beginning of August", 1993, that he considered himself "70 to 80 per cent fit" to return to his pre-accident occupation.
When asked by the Insurer's counsel about his condition on April 8, 1993, (the date of the termination of his weekly benefits) and how it prevented him from being able to perform his essential tasks of his pre-accident employment, Mr. Pauvif stated that he could not bend down to lift anything heavy, his shoulder was sore, his neck was stiff, and he could not fully move his head without pain and discomfort.
Mr. Pauvif could not recall details about specific complaints and when he made them. For example, when asked about his back pain and when he first complained about this condition to Dr. Patterson, he replied "I felt back pain after the accident", "I don't remember what I told him exactly".
In cross-examination, Mr. Pauvif agreed that he told Dr. Patterson on March 4, 1993, that his right shoulder "locked up" and he experienced "lots of pain" when he attempted to raise his right arm beyond what was described as a 45 degree shoulder abduction. This was on the same day that surveillance videotape showed him raising his arm to about 120 degrees abduction. Other than saying that he did this with pain and discomfort, Mr. Pauvif offered no explanation as to the significant difference in his ability to move his arm and shoulder within a matter of few hours.
In his testimony during cross-examination, Mr. Pauvif admitted that in an application for employment he submitted in March of 1993, he indicated that he was fit to work; however, he explained that he did this because he needed the money. It is interesting to note that this period of time coincided with Mr. Pauvif's anxiety due to the Insurer's surveillance of his activities. His new job at Campbell Soup, which he started on August 30, 1993, was even more demanding than his former job with General Mills. When asked how he coped with the new job when he was only feeling 70 to 80 per cent fit, Mr. Pauvif replied that he was assigned lighter duties at first, an assertion not corroborated by any evidence.
As indicated above, the onus is on the Applicant to bring himself within the provisions of section 12(1) of the Schedule. Mr. Pauvif volunteered little information about his medical condition and any limitations imposed by his pain in performing his essential tasks. I found him to be evasive in answering questions from the Insurer's counsel, and at times he exhibited what appeared to be a convenient lapse of memory.
Dr. Patterson's findings of pain were based on what Mr. Pauvif told him, accordingly, I find his evidence no stronger than that of Mr. Pauvif's. I have heard no other evidence which corroborates Mr. Pauvif's claim of disability.
Dr. Zeldin's examination of Mr. Pauvif appears to be more thorough than Dr. Patterson's. Dr. Zeldin's testimony was uncontradicted by any other evidence. His testimony and the surveillance evidence have raised in my mind serious doubts about Mr. Pauvif's credibility.
It is possible that a person could have pain in the complete absence of any physical findings. However, even if I were satisfied that, during the time period in issue Mr. Pauvif did experience pain from myofascial injuries arising from the accident, I am not persuaded by the evidence that the pain was severe enough to render him substantially incapable of performing his essential tasks.
In conclusion, I find that Mr. Pauvif has not provided sufficient evidence to establish, on the balance of probabilities, that he suffered substantial inability to perform the essential tasks of his pre-accident employment for any period of time after April 7, 1993.
Order:
The Applicant is not entitled to weekly benefits for any period of time after April 7, 1993.
The Applicant is entitled to his expenses incurred in respect to the arbitration.
July 28, 1994
Asfaw Seife Arbitrator
Date