Neutral Citation: 1994 ONICDRG 74
File No. A-004305
ONTARIO INSURANCE COMMISSION
BETWEEN:
RICHARD J. MADORE
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Richard J. Madore, was injured in a motor vehicle accident on March 19, 1992. He applied for and received statutory accident benefits from the Insurer under Ontario Regulation 6721. Weekly benefits were terminated by the Insurer on September 3, 1993.
The Applicant claims that he is entitled to receive ongoing weekly income benefits under section 12 of the Schedule. The Insurer states that the Applicant was not employed at the time of the accident and was entitled to receive weekly income benefits in the amount of $185 under section 13 of the Schedule up to September 3, 1993. Thereafter, the Insurer maintains that the Applicant was no longer substantially unable to perform the essential tasks in which he normally engaged prior to the accident. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this hearing are:
Is the Applicant entitled to claim benefits under section 12 or section 13 of the Schedule? Was the Applicant employed for any 180 days in the 12 month period before the accident, within the meaning of section 12 of the Schedule?
Did the Applicant continue to suffer a substantial inability to perform his essential tasks after September 3, 1993?
Originally, the Applicant sought weekly income benefits above the minimum amount of $185.60 payable under section 12(7) 1 .iii of the Schedule. However, at the outset of the hearing, I was advised of the agreement that in the event the Applicant establishes entitlement under section 12 of the Schedule, his claim is limited to $185.60 per week.
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
In the 12 month period before the accident (March 18, 1991 to March 18, 1992) the Applicant was not employed by Purolator Courier Ltd ("Purolator") for 180 days within the meaning of section 12(3) of the Schedule and is therefore not eligible for weekly income benefits under section 12.
The Applicant did not continue to suffer a substantial inability to perform the essential tasks in which he normally engaged, within the meaning of section 13 of the Schedule, after September 3, 1993.
The Applicant is entitled to the expenses of this arbitration.
Hearing:
The hearing was held in Timmins, Ontario, on January 26, 1994, before me, Janice Mackintosh, arbitrator.
Present at the Hearing:
Applicant:
Richard J. Madore
Applicant's
Debra Robinson
Representative:
Barrister and Solicitor
Insurer's
Stephen Malach
Representative:
Barrister and Solicitor
Insurer's Officers:
Helene Towsley
Claims Representative
Barbara Agonis
Accident Benefits Claims Specialist
Court Reporter:Jean Eaton
Information Managers
Witnesses:
The Applicant and his wife, Mrs. Theresa Madore
Exhibits:
Eighteen exhibits were filed. The Exhibits are set out in Appendix A to this decision.
Other documents before the Arbitrator are listed in Appendix B.
Evidence and Findings:
The following facts are not in dispute: The Applicant, Mr. Madore, began his employment with Purolator on April 25, 1981 (Exhibits 7 and 8). Mr. Madore's last day as a driver courier for Purolator was January 25, 1991 (Exhibits 7 and 8). Mr. Madore was unable to continue as a driver courier due to a stress disorder (Exhibit 13). He applied for and received the maximum number of weeks of Short Term Disability Benefits ("S.T.D.") through his employer, from January 28, 1991 to May 20, 1991 (Exhibit 7).
Purolator issued a record of employment dated June 11, 1991, to enable Mr. Madore to apply for Unemployment Insurance Commission sick benefits. The record of employment notes "medical leave" in the comments section (Exhibit 8). Purolator assumed Mr. Madore would return to work with Purolator in the future (Exhibit 7). Mr. Madore remained eligible to receive other employee benefits through Purolator, including partial reimbursement for medical prescriptions, dental, and vision care expenses (Exhibit 7).
Mr. Madore claimed no health or welfare benefits, through his employment with Purolator, after May 22, 1991. Mr. Madore performed no duties for Purolator and no further payments of any kind were made to Mr. Madore by or through Purolator after May 22, 1991 (Exhibit 7).
By April 25, 1991, Mr. Madore's doctor expressed the opinion that his patient was well enough to return to a less demanding position than that of a driver courier, but his future well being would be compromised if he returned to that work (Exhibit 13). On cross examination, Mr. Madore conceded that by May or June of 1991, he had given up the idea of ever driving as a courier again. However, he felt fit otherwise, and hoped to obtain a non-driving position with Purolator or elsewhere, as soon as one became available.
By June 1991, Mr. Madore's S.T.D. benefits through Purolator had expired. On June 3, 1991, Mr. Madore applied for benefits from the Unemployment Insurance Commission ("U.I.C."). When questioned, Mr. Madore could not recall whether he specifically applied for sick benefits. The provisions of the employee benefit booklet prepared by Purolator were entered as Exhibit 1 by Applicant's counsel. This booklet states:
If you are still disabled after the first 15 weeks, you may be entitled to receive an additional 15 weeks of U.I.C. sick benefits according to their specifications, which totals 30 weeks of Short Term Disability Benefits. These U.I.C. claim forms are available through your local U.I.C. office.
In any event, U.I.C. sickness benefits were established and paid effective May 19, 1991 (Exhibit 11).
Mr. Madore was aware of Purolator's Long Term Disability ("L.T.D.") program which was also described in the employee benefits booklet (Exhibit 1). The L.T.D. program provided employees of Purolator with financial protection for up to 24 months of disability provided that the employee was totally disabled and unable to engage in any employment for which he was reasonably fitted by education, training, or experience (Exhibits 1 and 7). According to the booklet, L.T.D. benefits were not open to Mr. Madore until 30 weeks after his initial disability (15 weeks S.T.D. and 15 weeks U.I.C. sick benefits) which would occur in September 1991. At some point Mr. Madore formulated the opinion that he would not qualify for L.T.D. benefits through his employer's disability program. Mr. Madore did not apply for L.T.D. benefits through his employer.
On June 27, 1991, Mr. Madore returned to the U.I.C. office. His application was changed from sick benefits to a regular claim for unemployment benefits retroactive to May 19, 1991 (Exhibit 11). In cross examination Mr. Madore acknowledged that he began to receive regular unemployment insurance benefits which required him to submit written cards declaring that he was actively searching for and willing to accept full time employment (Exhibit 11).
Mr. Madore actively searched for work that did not require driving, and submitted job applications to several businesses, including security and maintenance companies. He also continued to make regular inquiries about non-driving opportunities at Purolator. In June or July 1991, Mr. Madore bid on his regular driver courier run with Purolator, in order to maintain his rights with his employer.
On October 24, 1991, Mr. Madore contacted Purolator. On that date, a note appears in Mr. Madore's personnel file that he wanted employment other than as a driver courier. The company informed him that no other type of work was available. A decision was made to terminate Mr. Madore's employment with Purolator on the basis that he could no longer handle courier duties. As a result of this termination Mr. Madore was no longer eligible to claim L.T.D. benefits or employee health and welfare benefits through the company (Exhibit 7).
On March 19, 1992, both Mr. Madore and his wife sustained injuries in a motor vehicle accident. Mr. Madore continued to receive regular benefits from U.I.C. to April 25, 1992. On April 26, 1992, he commenced a full time training course arranged through U.I.C. While in attendance at the training course, Mr. Madore continued to receive U.I.C. benefits at the regular rate. Mr. Madore discontinued his training course on September 11, 1992, due to illness. He received three weeks of U.I.C. sick leave benefits from September 13 to October 3, 1992, for a total of 72 weeks of U.I.C. benefits. No further U.I.C. benefits were available to him after October 3, 1992, as he had exhausted his U.I.C. claim (Exhibit 11).
1. Is the Applicant entitled to claim weekly benefits under section 12 or 13 of the Schedule?
Counsel for Mr. Madore submitted that he was entitled to claim weekly income benefits under section 12 of the Schedule even though he was not employed or self employed at the time of the accident. The relevant provisions of section 12 state:
12(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (1):
- He or she must have been at the time of the accident,
i. employed or self employed,
ii. on 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.
(3) A person who was unemployed and who was not self employed at the time of the accident is qualified to receive a weekly benefit under subsection (1) if he or she was employed or self employed for any 180 days in the twelve month period before the accident, and if he or she as a result of and within two years of the accident has suffered a substantial inability to perform the essential tasks of the occupation or employment in which he or she spent the most time during the twelve month period before the accident.
Mr. Madore did not claim to be on temporary layoff, at the time of the accident on March 19, 1992. Nor did he allege that he was entitled to start work within one year under an offer of employment made before the accident and evidenced in writing.
Counsel for Mr. Madore submitted that he remained employed by Purolator from January 25, 1991, the last day he worked, to October 24, 1991, the date he was terminated by Purolator. The Applicant claims that in the 12 months preceding the accident (March 18, 1991 to March 18, 1992) he was employed by Purolator for 221 days from March 18, 1991 to October 24, 1991, and is therefore eligible for weekly benefits under section 12(3) of the Schedule. Counsel maintained that Mr. Madore was not stripped of his status as an employee merely because he was disabled from his position as a driver courier, had exhausted his entitlement to S.T.D. benefits and did not qualify for L.T.D. benefits through the company program. It is suggested that Mr. Madore continued to be employed and as such, remained eligible for other health and welfare benefits through Purolator until the date of his termination on October 24, 1991.
Counsel for the Insurer noted that the word employed is not defined by the Schedule or the Insurance Act. Counsel referred to the definitions of "employed", "employee", and "employer", contained in Black's Law Dictionary, fifth Edition, West Publishing Co., St. Paul Minn., 1979, as follows:
employed: Term signifies both the act of doing a thing and the being under contract or orders to do it. To give employment to; to have employment.
employee: One who works for an employer; a person working for salary or wages.
employer: One for whom employees work and who pays their wages or salaries.
Counsel for the Insurer observed that Mr. Madore did no work for Purolator from January 25, 1991, and received no payment of any kind from Purolator after May 22, 1991, which are two of the chief indicia of being employed.
I am not persuaded by the Insurer's argument that the state of being employed is limited to those periods when work is done and wages are received.
In my view, individuals may retain their status as employees during periods when they are neither performing work nor earning income due to such reasons as illness or an unpaid leave of absence. I consider that the state of being employed depends as much upon the intentions of the employer and the employee and the expectations between them, as upon the payment of salary in return for specified work.
In the decision Rajinder Sharma and Co-Operators General Insurance Company, February 7, 1994, OIC File No. A-003840, Arbitrator Palmer considered the intention of the parties as a factor in determining whether Mr. Sharma was unemployed or on a temporary lay-off at the time of an accident. At page six of the decision Arbitrator Palmer stated:
I agree that the intention in the minds of the parties at the time of the "temporary lay-off' and their good faith is important. A lay-off by an employer who has no intention of recalling the employee is tantamount to dismissal. Similarly, a laid-off employee who immediately seeks other permanent employment may have no intention of treating the separation as "temporary". The actions of the parties with respect to their employer/employee relationship up to the date of the accident are important. However, I do not believe that the intention of the parties should govern the question of temporality of the lay-off; an objective, reasoned interpretation of the individual circumstances is called for.
In the circumstances of this case I find that Mr. Madore was employed by Purolator to perform the duties of a driver courier. Purolator granted the Applicant a leave of absence from these duties because of illness, however Purolator expected Mr. Madore to return to his position as a driver courier in due course.
On his part, Mr. Madore began to take steps which were inconsistent with a continued intention to remain employed as a driver courier with Purolator. By May or June 1991, at the latest, Mr. Madore had resolved not to return to his position as a driver courier. He began to look for different work. After June 27, 1991, Mr. Madore began to accept regular U.I.C. benefits. These were predicated on unemployment, unlike the sickness benefits he had previously been receiving which were based on a temporary leave of absence from his courier duties, due to illness.
I accept that Mr. Madore informed Purolator of his desire to return to work as soon as possible and advised them that he was willing and able to return to work in a non-driving position. However, no other position was available and none was offered to Mr. Madore by Purolator. No evidence suggests that Purolator agreed to continue the Applicant's employment despite his decision to relinquish the driver courier position. On the contrary, Mr. Madore testified that in order for him to maintain a connection with his employer he made a pro forma bid on his regular courier delivery route in June or July 1991, despite his intention never to return to that position.
I conclude that Mr. Madore ended his employment with Purolator in June 1991, when he resolved not to return to his position as driver courier. When Purolator became aware of Mr. Madore's true intentions, in October 1991, they severed any remaining connection with him.
I find that in the 12 month period before the accident (March 18, 1991 to March 18, 1992) Mr. Madore was employed by Purolator for 105 days from March 18, 1991 to June 30, 1991, the month when he decided to relinquish his position as a driver courier. Mr. Madore is therefore not eligible for weekly benefits under section 12(3) of the Schedule.
2. What were the Applicant's essential tasks?
Having decided that Mr. Madore is not entitled to claim benefits under section 12 of the Schedule, I need not determine the essential tasks of his employment with Purolator nor whether he continued to suffer a substantial inability to perform these tasks beyond September 3, 1993. Mr. Madore made it very clear in his evidence that he had become permanently disabled from driving as a courier well before the motor vehicle accident, although he did continue to drive under less stressful circumstances.
Mr. Madore described the normal activities of his daily life, prior to the motor vehicle accident, in considerable detail. In addition to searching for work, Mr. Madore assumed responsibility for the majority of the house and yard work, because his wife was working outside the home.
Mr. Madore testified that he and his wife live in Schumacher, just outside Timmins, Ontario, in a compact two bedroom bungalow, built on a small lot with a shared pathway. On the days his wife worked, Mr. Madore got up with her at 6:00 a.m. While his wife got ready for work, he prepared coffee and made the bed. He drove his wife to her job and returned home to do "at least a couple of hours" of housework per day "and some days more". His chores included: vacuuming at least once per week; dusting; tidying up; washing the bathroom floor and fixtures; wiping mirrors; straightening pictures; picking up dirty laundry, carrying it to the basement and doing laundry approximately four or five times per week; washing kitchen counters; cleaning the stove top, oven, and fan as needed; washing and waxing the kitchen floor as needed; washing and putting the dishes away; cleaning and organizing the spare room and basement. Mr. Madore testified that he was not much of a cook but he did what he could before his wife returned from work after 3:00 p.m.
Mr. Madore also worked outside the house including: trimming the hedges; sweeping the path; mowing the lawn in summer; raking the leaves in fall; and shovelling the snow in winter. Mrs. Madore testified that they had a small lot and that the outside work took approximately 10 minutes in total to complete. Mr. Madore washed the windows about once a month in summer; painted the deck and trim on the house once a year or so; and tended to the vegetable garden.
During his testimony, Mr. Madore focused primarily on his household tasks and seemed most frustrated by his difficulties with them. He was troubled that he was unable to contribute as much around the house as before the accident, particularly during the period following his wife's return to work. Mrs. Madore testified that following the car accident, she returned to work in early July 1993 and has been doing the heavier housework since that time.
Mr. Madore also mentioned pre-accident recreational activities which included: fishing several times per summer, using a 12 foot aluminium boat; spending time in a 14 foot trailer/camper which was located on a permanent site in the bush between Timmins and Sudbury; and spending time fishing, hiking, and hunting as a volunteer with the Big Brother program.
I place less importance on these activities as they appeared to be less important to the Applicant. I heard no evidence to establish that these were essential tasks rather than optional recreational activities.
3. Does the Applicant continue to suffer a substantial inability to perform the essential tasks in which he would normally engage after September 3, 1993?
a) Applicant's evidence concerning post-accident condition:
The Insurer conceded that Mr. Madore suffered injuries to his neck, upper back, and headaches, as a result of the motor vehicle accident on March 19, 1992. Mr. Madore testified that in the months following the accident he could not get out of bed or a chair without assistance, he could barely walk, he could do no house or yard work and his main activity was sitting watching television. The house and yard work was done by relatives, friends, and neighbours. The Insurer paid weekly benefits for approximately 18.5 months following the accident until September 3, 1993.
The Applicant conceded that his condition has improved since the early months following the accident. He can now walk for up to a mile, he has been trying to resume all of his household chores with the exception of making the bed, washing the floors, vacuuming, and doing laundry. However, he still experiences pain between his shoulder blades and lower back pain, which he testified is very different from the back strain experienced by him in the past in connection with a series of worker's compensation injuries in 1985, 1986, 1987 and 1989 (Exhibit 12). At present, he occasionally needs assistance when getting out of bed or a chair. He attends to his personal hygiene, bends to put on his shoes and clothing, and performs some of his household chores, although more slowly than before the accident. He has trouble performing activities which require the sustained use of his back and has given up using his 12 foot aluminum boat to go fishing because he finds it difficult to lift it or sit in it for any length of time.
Counsel for the Insurer made much of certain discrepancies between the evidence of Mr. and Mrs. Madore concerning the performance of household and outdoor chores by others on their behalf. Mr. Madore testified that his sister came in and did laundry approximately two or three times each week in the period prior to his wife's recovery from her injuries; a friend, David Clark, regularly cut the grass; their neighbour, Nicki O'Leary, planted and cared for their vegetable garden, while Patrick O'Leary shovelled the snow between their houses. Mrs. Madore testified that the O'Learys cut the grass, took care of the vegetable garden, and shovelled the snow. She made no mention of the grass cutting by David Clark nor the laundry assistance provided by her sister-in-law.
I do not place as much importance upon these discrepancies as counsel for the Insurer. I find the evidence of the Applicant and his wife concerning the Applicant's pre-accident activities and his post-accident difficulties to be largely consistent and corroborative.
b) Medical evidence concerning post-accident condition:
Approximately two months after his injury, the Applicant was referred to Dr. David C. Martin, orthopaedic surgeon, by the Insurer. Dr. Martin reported in May 1992, that Mr. Madore suffered a neck strain typical of whiplash. Dr. Martin found no muscle spasm and opined that as the patient's mobility was completely normal, his disability was relatively mild. At that time Mr. Madore reported that he was able to help with the light cleaning in the house but experienced difficulty when he undertook heavier tasks such as raking leaves, cutting grass, vacuuming or washing floors. Dr. Martin anticipated that Mr. Madore could return to his essential daily tasks within three to four months of the accident.
Approximately five months after his injury, the Applicant was referred by the Insurer to another orthopaedic specialist, Dr. Alfred W.M. Sem. In his report dated August 25, 1992, Dr. Sem noted a full active range of motion in the neck and in either shoulder, with no paraspinal spasm and no evidence of painful arc or impingement. At that time Mr. Madore reported that he could sit for about 10 minutes but would rather stand. He could stand for as long as he liked, provided that he could change positions while standing up. He could walk up to a mile comfortably but after that would experience pain in his lower back. Mr. Madore reported problems performing the tasks of cutting grass, vacuuming, doing laundry and buying groceries. In an addendum dated September 1, 1992, Dr. Sem noted that Mr. Madore would have problems doing chores that required bending his lumbar spine, such as cleaning the floor or gardening. Dr. Sem concluded that Mr. Madore had suffered a soft tissue type of injury with mild disability and anticipated that he could expect to regain his pre-accident functioning level with further physiotherapy.
Approximately eight months after his injury, the Applicant was referred to a third orthopaedic surgeon, Dr. Ed Dakin, by his family doctor. Dr. Dakin reported, in November 1992, that the Applicant suffered a classical extension rotation type injury to his upper thoracic spine, and potentially to his lower cervical spine. Dr. Dakin noted the presence of muscle spasm to the left of the spinous processes of T1, 2 and 3 and into the inner border of the left scapula. He did not anticipate a complete resolution of the Applicant's injury to his upper spine but predicted a gradual improvement over the next year or two. Dr. Dakin did not comment on the Applicant's range of motion or the extent of his ability to perform his essential tasks.
Approximately 12 months after his injury, the Applicant attended a functional capacity evaluation at the Sudbury Orthopedic and Sports Physiotherapy Centre. Mr. Gilles Chabot, physiotherapist, tested Mr. Madore's ability to perform various activities over approximately eight hours spanning March 25 and 26, 1993. Like Dr. Sem and Dr. Martin, but in contrast to Dr. Dakin, Mr. Chabot noted no muscular spasm through the Applicant's spinal segments. In a detailed report, Mr. Chabot noted the results of the numerous physical tests administered by him and concluded that Mr. Madore demonstrated significant functional abilities including: the ability to lift 40 pounds to waist height and 24 pounds overhead on a frequent basis; to push 50 pounds very frequently; to pull 79 pounds very frequently; to carry 24 pounds in either hand frequently; normal tolerances for prolonged sitting, standing, and walking; average ability and tolerances for kneeling, deep static crouching, crawling, repetitive squatting, stair climbing and step ladder climbing; as well as average flexibility and co-ordination.
Mr. Chabot concluded that the Applicant "did not really demonstrate any significant deficits" however he exhibited a "slight loss of endurance" for activities which required forward bend positions while sitting or standing or repeated rotations while sitting or standing. Mr. Chabot suggested that such activities be limited to approximately 34 to 66 percent of an eight hour period, i.e. between 2.6 and 5.2 hours out of an eight hour period. Mr. Chabot also found deficits in the Applicant's balance and noted that the Applicant was generally deconditioned and would benefit from a cardiovascular type exercise program. Mr. Chabot concluded that the Applicant lacked sufficient endurance, and the ability to perform activities which required prolonged forward bending, repetitive lifting, repetitive rotation of the trunk in excess of 2.6 to 5.2 hours a day, and carrying at the weights described in his job description as a courier driver with Purolator. Mr. Chabot did not comment on the Applicant's ability to perform his essential household and outdoor tasks.
Approximately 15 months after his injury, the Applicant saw Dr. Dakin again. In his report dated June 23, 1993, Dr. Dakin noted:
I think he is starting to improve moderately well with his fitness efforts and I think he will improve sufficiently over the next two or three months that he has a chance of getting back to work [sic].
His day is still reduced to some three to four hours, but again over the next few months he might increase his tolerance and be able to be on hard floors, look up and climb ladders and do more in the way of activity. I think at the moment he is disabled for another three to four months and then has a reasonable chance of getting back into the work force.
As of June 1993, the consensus of the medical opinion was that Mr. Madore was progressively recovering his functional abilities and could tolerate between 2.6 and 5.2 hours of activity. Mr. Chabot observed the Applicant performing activities which included: forward bending, repetitive lifting, rotations of the trunk, and carrying weights of various amounts, with some limitations. Mr. Madore and his wife testified that prior to the car accident Mr. Madore performed somewhat more than two hours and 10 minutes of house keeping and outdoor chores a day. Not all of these activities require the kind of prolonged or repetitive movements proscribed by Mr. Chabot. I conclude that by June 1993, Mr. Madore was substantially able to perform his pre-accident essential tasks, within the guidelines recommended by Mr. Chabot.
In July and August 1993, the Applicant participated in a program of general conditioning at the Workfit Rehabilitation Clinic Conditioning Program (Workfit) located in the Timmins and District Hospital. In a discharge report dated September 14, 1993, the Applicant's physiotherapist noted that Mr. Madore made considerable progress in the conditioning program. The Applicant also testified that he experienced improvement in his function as a result of this exercise program. However, I find that the combined effects of a strain to his neck received in late July 1993, when he attempted to help a friend move a fishing boat, and a personality conflict between himself and the registered physiotherapist who supervised his Workfit program, resulted in an early termination of the conditioning program on August 10, 1993 (Exhibit 17).
On August 16 and 17, 1993, the Applicant returned to the Sudbury Orthopedic and Sports Physiotherapy Centre for a further functional capacity evaluation conducted by Gilles Chabot. With the benefit of the cardiovascular conditioning program at Workfit, and the passage of 17 months post-accident, Mr. Chabot observed that "[o]ne would expect higher functional abilities than what was obtained". Mr. Madore demonstrated somewhat reduced tolerances for sitting and overhead work as well as reduced weight carrying abilities from his previous functional capacity evaluation conducted approximately five months earlier. Mr. Chabot also noted that the Applicant's activities were limited by the fact that his heart rate rapidly exceeded his maximal allowable heart rate, with very little effort. Mr. Chabot attributed this to Mr. Madore's perceived high stress levels.
Based upon Mr. Madore's performance in the numerous tests administered over the two day period, Mr. Chabot again concluded that the Applicant could not perform the sustained lifting, bending, twisting, as well as sitting activities required by a driver courier with Purolator. However, Mr. Chabot did consider Mr. Madore capable of performing the activities of daily living including vacuuming, washing floors, and making beds, provided that activities requiring forward bend positions while sitting or standing, repeated rotations while sitting or standing, or work with his arms above his head, were limited to approximately 34 to 66 percent of an eight hour period, i.e. between 2.6 and 5.2 hours out of an eight hour period.
No explanation was provided for the unexpected reduction in Mr. Madore's function from the first functional capacity evaluation conducted in March 1993 and the second in August 1993. Mr. Madore conceded that he did not inform Mr. Chabot of the recent strain to his neck caused by lifting a fishing boat in July 1993.
Up to the date of this functional evaluation, all of the medical examiners reported a gradual improvement of the Applicant's condition following the car accident. I find that the reduction in the Applicant's function reflected by the second functional evaluation was more likely due to the short term effects of the recent boat lifting incident, rather than a long term degeneration related to the car accident, 17 months earlier.
The Insurer terminated the Applicant's weekly benefits on September 3, 1993. Counsel for the Insurer confirmed that it seeks no repayment of weekly benefits paid prior to that date, under the provisions of section 24 of the Schedule.
In a letter dated October 27, 1993, Dr. Dakin echoed Mr. Chabot's opinion that Mr. Madore's problems with sustained posture would make it difficult for him to return to the work force. Dr. Dakin noted tenderness of the thoracic spine however there was no active muscle spasm. He did not comment upon the Applicant's ability to perform household chores in this letter.
In a follow-up letter dated January 14, 1994, Dr. Dakin expressed the opinion that Mr. Madore's everyday activity was considerably limited. Dr. Dakin reported that Mr. Madore "will have trouble with any sustained posture, sitting, standing, walking". He "would not be able to do more than one hour total of household type activities in a day and this would have to be spread out over the day". Dr. Dakin specifically referred to difficulties performing the activities of laundry, vacuuming, lawn mowing, shovelling and dishwashing.
During cross examination, Mr. Madore confirmed that he did not see Dr. Dakin in January 1994. He surmised that Dr. Dakin's conclusions must have been based on discussions and observations made during earlier visits. Furthermore, Mr. Madore's own testimony and comments to other medical practitioners reflect fewer limitations than suggested by Dr. Dakin. For example, Mr. Madore testified that he could generally walk up to a mile, he could do activities involving prolonged sitting, such as watching television, reading a book, fishing from shore, provided that he could shift his position, and activities while standing, such as dusting and doing the dishes.
In January 1994, Dr. Dakin commented that Mr. Madore's household activities were reduced to approximately one hour due to his limitations, whereas six months earlier Dr. Dakin had reported, in June 1993, that Mr. Madore's activities were reduced to some three to four hours due to his limitations. No explanation for this difference was provided. Furthermore, it is not clear what tests or examinations Dr. Dakin relied upon in support of his opinion.
For these reasons, I prefer the detailed and specific observations and conclusions of Mr. Chabot, as set out in the two reports which were prepared contemporaneously with his examinations of the Applicant in March and August 1993, over the more general opinion of Dr. Dakin expressed in his letter of January 14, 1994, which was apparently based upon his recollection of the Applicant from three months earlier.
I accept that Mr. Madore experiences pain and disability when performing activities that involve prolonged bending or repeated rotations of his thoracic spine. Furthermore, Mr. Chabot has recommended that such activities be limited to between 2.6 and 5.2 hours of his total daily activities. However, I am satisfied that by September 3, 1993, Mr. Madore was substantially able to perform his pre-accident essential tasks, within the guidelines recommended by Mr. Chabot.
Expenses:
The Applicant seeks an award of expenses he has incurred in this arbitration. An award of expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
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, Dispute Resolution Expenses.
In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Senior Arbitrator Susan Naylor concluded that it was appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings. None of these factors were present in this case. Furthermore, there was an arguable issue concerning whether Mr. Madore's claim for weekly benefits arose under section 12 or 13 of the Schedule, and the nature of his essential tasks prior to the accident.
I conclude that the Applicant is entitled to his expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event the parties cannot agree to the total amount of expenses, I remain seized of this matter and either party may apply for an assessment of the expenses before me.
Order:
Mr. Madore is not eligible for weekly income benefits under section 12 of the Schedule.
Mr. Madore did not continue to suffer a substantial inability to perform the essential tasks in which he would normally engage, within the meaning of section 13 of the Schedule, after September 3, 1993.
Mr. Madore is entitled to the expenses of this arbitration.
August 24, 1994
Janice Mackintosh Arbitrator
Date
APPENDIX "A"
EXHIBITS
Exhibit 1
Excerpt from Purolator Courier Employee Benefit Booklet
Exhibit 2
Letter from Dr. E.B. Dakin to Dr. M. Giorgetti dated November 25, 1992
Exhibit 3
Letter from Dr. E.B. Dakin to Dr. M. Giorgetti dated June 23, 1993
Exhibit 4
Letter from Dr. E.B. Dakin to Dr. M. Giorgetti dated October 27, 1993
Exhibit 5
Letter from Dr. E.B. Dakin to Mr. James Wallbridge dated January 14, 1994
Exhibit 6
Handwritten notes of Dr. J.G. Campbell dated January 19, 1994
Exhibit 7
Letter from Donna Jeacle, Human Resources Assistant, Purolator Courier to Mr. Malach dated September 29, 1993
Exhibit 8
Record of Employment prepared by Purolator Courier Ltd dated June 11, 1991
Exhibit 9
Letter from James Wallbridge to Dr. E.B. Dakin dated January 11, 1994
Exhibit 10
Note of Dr. M. A. Giorgetti dated June 2, 1992
Exhibit 11
Letter from Employment and Immigration Canada to Mr. Stephen M. Malach dated September 16, 1993
Exhibit 12
Letter from the Workers' Compensation Board to Mr. Richard Madore dated January 13, 1993
Exhibit 13
Letter from Dr. M. A. Giorgetti to Ms. Jane Reid, Group Benefits Department, The Maritime Life Assurance Company, with enclosures, dated April 25, 1991
Exhibit 14
Report of Dr. David C. Martin to Ms. Helene Towsley, The Co-operators, dated May 20, 1992
Exhibit 15
Report of Dr. Alfred W.M. Sem to Mr. Hugh Macdonald, Senior Claims Specialist, The Co-operators, dated August 25, 1992
Exhibit 16a
Functional Capacity Evaluation from the Sudbury Orthopedic and Sports Physiotherapy Centre dated March 25 and 26, 1993
Exhibit 16b
Functional Capacity Evaluation from the Sudbury Orthopedic and Sports Physiotherapy Centre dated August 16 and 17, 1993
Exhibit 17
Report of Sheila Petrachenko, Registered Physiotherapist at Timmins and District Hospital to Mr. Sean Bradley, Northern Rehabilitation and Consulting Services Inc., dated September 14, 1993
Exhibit 18
Letter and report from Dr. Alfred W.M. Sem to Mr. Hugh MacDonald, Senior Claims Specialist, The Co-operators, dated September 1, 1992
APPENDIX "B"
DOCUMENTS BEFORE THE ARBITRATOR
Report of Mediator, dated May 28, 1993
Application for Appointment of an Arbitrator dated June 3, 1993
Response by Insurer dated July 29, 1993
Pre-hearing letter from Arbitrator Palmer dated August 9, 1993
Second pre-hearing letter from Arbitrator Palmer dated September 13, 1993
Amended Response by Insurer dated January 18, 1994
Written submissions of the Insurer provided at the hearing