Ontario Insurance Commission
Neutral Citation: 1994 ONICDRG 86 File No. A-006689
Between: Gurbir Kaur (Applicant) and Dominion of Canada General Insurance Company (Insurer)
Decision
Issues:
The Applicant, Gurbir Kaur, was injured in a motor vehicle accident on May 17, 1991. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits paid under section 12 of the Schedule were terminated by the Insurer on February 13, 1993. The Applicant claimed that she was substantially unable to perform the essential tasks of her occupation or employment and remained entitled to weekly income benefits. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8. The issue which I was asked to determine in this arbitration is whether the Applicant was entitled to weekly income benefits from February 14, 1993 to May 17, 1994. The Applicant claimed interest on any overdue weekly income benefits and her expenses of this arbitration.
Result:
The Applicant is entitled to weekly income benefits for the period between February 14, 1993 and May 17, 1994.
The Applicant is entitled to interest pursuant to section 24(4) of the Schedule.
The Applicant is entitled to her expenses in respect of this arbitration.
Hearing:
The hearing was held in North York, Ontario, on May 25, 1994, before me, Suesan Alves, Arbitrator.
Present at the Hearing:
Applicant: Ms. Gurbir Kaur
Applicant's Representative: Mr. Gurcharan Anand Barrister and Solicitor
Insurer's Representative: Mr. David Zuber Barrister and Solicitor
Witnesses:
For the Applicant: Ms. Gurbir Kaur, Mr. Anthony Stennett, Dr. Stephen Cartan
For the Insurer: Dr. Joseph Kwok
Exhibits: Seven Exhibits were filed at the hearing. They are detailed in Appendix A.
EVIDENCE & FINDINGS:
The Applicant's pre-accident occupation:
Since 1989, Ms. Kaur had worked for fast food restaurants while attending high school. At the date of the accident, Ms. Kaur was attending Grade 13 and had been working at Burger King for about 8 months. Ms. Kaur lived with relatives. She worked while attending school as she wished to support herself financially as much as possible.
The Essential Tasks of the Applicant's Employment:
In order to determine the essential tasks of the Applicant's employment or occupation, I am required by the Schedule to examine the work which was actually performed by the Applicant prior to the motor vehicle accident. Since she began to work at Burger King, Ms. Kaur worked as a cashier/food handler. Ms. Kaur's hours of work varied, depending on the needs of the restaurant and her availability. Based on her Record of Employment, I find that Ms. Kaur worked during 20 of the 22 weeks before the accident and averaged approximately 25 hours of work during each of those weeks.
The minimum length of her shifts was 5 hours on weekdays. On her weekday shifts she would work continuously for 4 1/2 hours and take her break at the end of the shift. She also worked on Saturdays and Sundays. Her weekend shifts were usually 9 1/2 hours long. On these shifts she would take a half hour break mid morning and a fifteen minute break in the afternoon. On two or three days a month she would work a shift of 13 1/2 hours. This would occur if the restaurant was very busy and Ms. Kaur was asked to continue working by her manager. It is clear that once she was at work, she was prepared to make herself available for longer hours as needed by her employer.
The Applicant and her manager, Mr. Stennett, gave evidence about her duties. On the basis of their evidence, I find that the Applicant's duties as a cashier /food handler involved working on front cash 80% to 90% of the time, that her essential tasks involved greeting customers, taking customer orders, relaying them to the kitchen, filling the orders quickly, packaging them for customers, providing condiments, sugar, napkins etc. with the order, collecting payment, handing orders to customers for take out or at the drive thru or delivering them to the dining room. She was also required to stock up cups, lids and napkins, make coffee and spot sweep the floor. When she opened in the morning she would assist in breakfast preparation. In the remaining 10% to 20% of time Ms. Kaur was required to keep busy. She would work at the drive thru, dining room, in the kitchen, on sandwich boards making sandwiches, clean tables, mop floors, change garbage, and cater birthday parties.
On the basis of the evidence of the Applicant and of Mr. Stennett, I find that Ms. Kaur was required to remain on her feet throughout a shift. Standing was required for 50% of her shift, while serving customers, and performing other tasks. Fast walking was required for 30% of the time, while engaged in various tasks. Mr. Stennett emphasized the need for fast walking. As he put it, Burger King is "a fast food restaurant". Mr. Stennett stated that he keeps "behind his employees all day long" and that he has "to get them hustling". Squatting was required for 20% of the time. Squatting was required with almost every order as the cashier obtains sugar, straws, napkins, utensils etc. from a "salad unit" under the counter for almost every customer.
Post-Accident Condition:
Prior to the motor vehicle accident the Applicant was a healthy young woman. On May 17, 1991, Ms. Kaur was returning home from work at Burger King. She was a pedestrian, standing at the yellow dividing line on a street when she was struck by a motor vehicle. She was thrown in the air. She landed on the ground, striking her head and elbow. She was also dragged a short distance by a car.
Ms. Kaur sustained two fractures to her left ankle and a direct blow to her right knee. She had multiple bruises and abrasions, a laceration of the bridge of her nose, and ligament injuries in both knees, in particular, a tear of the posterior cruciate ligament of her right knee. There was a fairly large abrasion on the back of her left foot consistent with being dragged or pushed along the street by the car.
Ms. Kaur was transported to hospital via ambulance. An open reduction with internal fixation was performed on her ankle fractures. She was discharged from hospital, on crutches, after one week. The hardware used to unite her fractures was removed on August 12, 1992.
The most significant of her injuries, as they affected her job function, were those to her right knee and to her left ankle. Ms. Kaur testified that her left ankle pains her constantly. She described that pain as an aching pain, which burns and itches. She can stand for 15 minutes to 20 minutes at one time and walk for 15 minutes at one time without increasing her level of pain. Fast walking is difficult. She experiences problems bending her right knee; when she straightens her right leg she experiences a pain which starts from her knee and goes down to her foot. She experiences pain in her right knee each time she squats.
The Attempted Return to Work:
In November 1992, the Applicant attempted to return to work at Burger King. Ms. Kaur did so on her own initiative. She believed that she could manage to work ten hours a week. She telephoned the manager, Mr. Stennett, and made arrangements with him to work 10 hours per week on weekends.
During November 1992, Ms. Kaur worked 4 - 5 hours on Saturdays and Sundays, for a period of three to four weeks. She found that after fifteen to twenty minutes of standing, the pain in her ankle got worse. She persevered, however, and worked despite the pain. At times she cried because of the pain. She developed swelling in her ankle with a bluish discolouration to the ankle area. She experienced pain with every squat. She took Tylenol. She eventually reached the point where she could not handle the pain and swelling any longer. She telephoned Mr. Stennett from home and told him that she couldn't continue working as the walking and standing made her pain worse. She asked him to take her off the schedule for the following week.
The Insurer's suggestion that the Applicant chose not to return to work because she began attending university was denied by the Applicant and not supported by evidence. It is clear from the evidence before me that Ms. Kaur attempted to return to her job in November 1992 when she was attending university as a full time student, although taking a reduced load of courses because of her post-accident pain and headaches.
Mr. Stennett testified that he arranged to have Ms. Kaur return on a Saturday when he would be at the restaurant. Mr. Stennett testified that in November 1992, while Ms. Kaur was working, she seemed to him at times to be in pain. He stated that he kept an eye on her for this reason. He would ask her if she was "OK" and she would say "yeah". Mr. Stennett acknowledged that most of his employees were afraid of him, and that this might have been a factor in her agreeing that she was "OK". He testified that Ms. Kaur's work performance was satisfactory during November 1992; he had no complaints.
The Medical Evidence:
Dr. Stephen Cartan, a general orthopaedic surgeon, treated the Applicant at the hospital, and continues to see her in follow up. In a report dated March 11, 1993, Dr. Cartan stated: "I do not feel that she is capable of work activity which required prolonged standing, or particularly, repetitive squatting or deep knee bending." Dr. Cartan gave oral evidence at the hearing. He stated that Ms. Kaur's residual symptoms continue, and that he continues to be of the same opinion.
In reaching his conclusion, Dr. Cartan looked at Ms. Kaur's ankle and knee from three perspectives. Firstly, he considered the structural anatomy of the joint, secondly the function on examination, and thirdly the signs and symptoms reported by Ms. Kaur.
From a structural point of view an excellent anatomical union of the fractures of her ankle had been achieved. From a functional point of view, that is to say, looking at the range of motion of her ankle, and the power in the associated muscle groups, she did not have a problem. Dr. Cartan then looked at the signs and symptoms reported by Ms. Kaur with a view to assessing how her ankle performed in real life. He characterized Ms. Kaur's residual complaints of pain, swelling, discolouration in the scarred area of her ankle, as legitimate and consistent with her injuries.
With respect to her right knee, Dr. Cartan testified that as a result of her injuries, the mechanics of her right knee are not normal, that the sagging posterior cruciate ligament leads to abnormal forces on the bearing surfaces of the knee joint. He is of the view that nothing should be done for this at this time. He stated that bending the knee and squatting are two of the most demanding activities for the knee. He recommended that Ms. Kaur avoid bending her knee and squatting for that reason.
Dr. Cartan stated that he had followed the Applicant and her injuries over the course of three years. He felt that if anything, Ms. Kaur understated her complaints. He agreed that her symptoms were protracted. Dr. Cartan stated that based on the last few visits, Ms. Kaur's recovery seems to have plateaued. He stated that when a patient with these injuries gets to a 3 year mark and still has residual symptoms, it tends to be difficult for anyone to predict when she will no longer experience residual symptoms. In his report dated March 11, 1993, Dr. Cartan recommended that the Applicant "should confine her work activities to sedentary situations such as in an office in which prolonged standing, stair climbing or repetitive stooping or bending are not required."
On January 12, 1993, Ms. Kaur was examined by Dr. Joseph Kwok at the request of the Insurer, pursuant to section 23 of the Schedule. Dr. Kwok concluded that there was "no contraindication for her to try to return to work again in one month's time". The Insurer terminated Ms. Kaur's weekly income benefits as of February 13, 1993 based on Dr. Kwok's report.
Dr. Kwok gave oral evidence at the arbitration hearing. He testified that the only occasion on which he examined Ms. Kaur was on January 12, 1993. Unfortunately he had not been provided with a detailed job description. He knew that the Applicant worked part-time as a cashier prior to the motor vehicle accident. He understood, based on his personal knowledge, that a cashier's job is "standing, collecting money and walking around".
Conclusion:
There was no issue as to the Applicant's credibility in this arbitration. All of the witnesses spoke highly of Ms. Kaur. Both orthopaedic surgeons found the Applicant to be credible, cooperative and sincere. Her former manager stated that she had been a very good worker and that he would hire back were she available. I accept the Applicant's evidence. I find that she made a sincere attempt to return to work, on her own initiative, and that she was unable to do so for ten hours per week. Prior to the accident the Applicant averaged 25 hours per week. Her evidence was supported by the opinion of Dr. Cartan who has followed her for over three years.
Dr. Kwok was unaware of the number of hours Ms. Kaur worked, the extent of the squatting she was required to perform, the fast walking and the fast pace involved in working as a cashier/food handler in a fast food restaurant. In my view, Dr. Kwok's opinion does not state that the Applicant is substantially able to perform the essential tasks of her employment, only that she could make a further attempt to try to return to her job.
To the extent that there is conflict in the opinions of Dr. Kwok and of Dr. Cartan, I prefer the evidence of Dr. Cartan. He provided a considered opinion which addressed some of the actual requirements of the Applicant's job, in particular prolonged standing and repetitive squatting. I find that the Applicant has established, on a balance of probabilities, that the injuries which she sustained in the motor vehicle accident on May 17, 1991, left her substantially unable to perform the essential tasks of her occupation or employment between February 14, 1993 and May 17, 1994.
Expenses:
The Applicant seeks an award of her expenses. An arbitrator has a discretion to award these expenses pursuant to section 282(11) of the Insurance Act. In exercising my discretion I have considered the principles guiding an award of expenses, as set out by Senior Arbitrator Naylor in the case of Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, and approved by the Director of Arbitrations in the case of Vito Luigi Calogero and The Co-Operators General Insurance Company February 13, 1992, OIC File No. P-000251:
"The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, it is 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."
I have also considered the submissions of counsel with respect to the manner in which I should exercise my discretion. The Applicant is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree on the amount of expenses, I remain seized of this issue and a party may apply for assessment of the expenses before me.
Order:
The Applicant is entitled to weekly income benefits for the period between February 14, 1993, and May 17, 1994.
The Applicant is entitled to interest pursuant to section 24(4) of the Schedule.
The Applicant is entitled to her expenses in respect of this arbitration.
September 22, 1994
Suesan Alves Arbitrator
Date
APPENDIX A
Exhibit 1 Report of Dr. Stephen J. Cartan dated March 11, 1993
Exhibit 2 Report of Dr. Stephen J. Cartan dated November 9, 1992
Exhibit 3 Voc-Care Rehabilitation Management Inc. Medical Questionnaire
Exhibit 4 Employment file from Burger King
Exhibit 5 Record of Employment completed by Burger King Canada Inc.
Exhibit 6 Report of Dr. M.K. Joseph Kwok dated January 12, 1993
Exhibit 7 Clinical notes and records of Dr. Cartan
OTHER DOCUMENTS BEFORE THE ARBITRATOR
Report of Mediator dated November 28, 1993 Application for Appointment of an Arbitrator Response by Insurer Pre-hearing letter Insurer's Book of Authorities, with 6 tabs