Neutral Citation: 1995 ONICDRG 111
File No. A-007596
ONTARIO INSURANCE COMMISSION
BETWEEN:
PETER SARRA
Applicant
and
COACHMAN INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Peter Sarra, was injured in a motor vehicle accident on November 4, 1992. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits were terminated by the Insurer on October 22, 1993. The parties were unable to resolve their disputes through mediation, beyond payment of a further two weeks of benefits to November 6, 1993. 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 Mr. Sarra entitled to weekly income benefits from November 7, 1993 under section 12 of the Schedule?
The Applicant raised the issue of quantum of benefits for the first time at the hearing. This issue had not been the subject of mediation and it was agreed that it was not properly before this Arbitrator.
The Applicant claims interest on overdue benefits.
Result:
Mr. Sarra is not entitled to weekly income benefits beyond November 7, 1993.
The Applicant is entitled to his expenses incurred in the arbitration.
Hearing:
The hearing was held in North York, Ontario, on June 22, 26 and 27, 1995, before me, Ruth Hartman, arbitrator.
Present at the Hearing:
Applicant:
Peter Sarra
Applicant's
Jeffrey Goldman
Representative:
Barrister and Solicitor
Insurer's
Ivan Luxenberg
Representative:
Barrister and Solicitor
Evidence:
Fourteen exhibits were filed. I heard evidence under oath from Mr. Sarra, Ms. Lynn Douglas, and Ms. Catherine Anne Butler for the Applicant, and from Dr. Ernest J. White, Dr. Perry J. Rush, and Mrs. Marilyn Halajian for the Insurer. Evidence and submissions were recorded by a court reporter, Holley & Strauch, provided by the Insurer.
Cases cited:
Edgar Cowie and The Non-Marine Underwriters, Members of Lloyd's, March 9, 1993, OIC File No. A-001159 (under appeal); and
Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024.
Reasons:
1. Background
Mr. Sarra was a back seat passenger in a taxi when it was struck on the rear passenger side on November 4, 1992. He was not wearing a seatbelt and his head hit the opposite window after the impact.
Mr. Sarra was taken to hospital by ambulance, examined and released without treatment. He was seen by his family doctor, Dr. W.P. Black, on November 9, 1992, for complaints of cervical pain and stiffness. On November 20, 1992, he reported headaches, and neck pain radiating into his shoulder blades and lower back. Dr. Black prescribed Motrin and Flexoril.
Mr. Sarra was referred to the Canadian Back Institute by the Insurer in the fall of 1993. In the Institute's discharge report of November 4, 1993, Mr. Sarra was found to have the functional ability to meet the demands of his job as a health care aide.
Also at the request of the Insurer, Mr. Sarra was examined by Dr. White, orthopaedic specialist, on August 6 and October 29, 1993. He was found fit to return to the essential duties of his previous occupation "without significant restrictions on his physical activities or duties".
2. Law
Section 12(1) of the Schedule provides for a weekly income benefit to be paid to a person who has been injured in a motor vehicle accident and suffers a "substantial inability to perform the essential tasks of his or her occupation or employment". To qualify, one must be "employed or self-employed", "on a temporary lay-off, or entitled to start work within one year under a legitimate offer of employment...". In any case, one must suffer 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."
The dispute in this case centres on differing views of the specific nature of Mr. Sarra's pre-accident employment and the general duties required in the occupation of health care aide.
Mr. Sarra's representative submitted that Mr. Sarra was unable to perform the heavy lifting, twisting and bending required of him and therefore was unable to perform the essential tasks of his employment as a health care aide. He submitted an assessment of Mr. Sarra by F.I.T. For Work Centres done on June 8 and 9, 1995.
The Insurer submitted that Mr. Sarra's pre-accident employment did not involve heavy lifting, twisting or bending and was well within his capabilities, as assessed in 1993 by Dr. White and the Canadian Back Institute, in 1994, by Dr. Rush, staff physiatrist at Mount Sinai, and in 1995, by F.I.T. For Work Centres.
3. Findings
a. Mr. Sarra's Pre-Accident Employment
I. Car business
Mr. Sarra, 31 at the time of the hearing, left school after Grade 11 and began buying and selling cars. In business with his twin brother, they acquired and stored classic cars in a warehouse, with crews working to restore them. In 1989, when his brother married and left the business, Mr. Sarra continued on his own until his brother rejoined the business shortly after Mr. Sarra's accident in 1992. They now supply classic, period cars to the movie industry on a rental basis.
The existence of the car business arose during testimony clarifying the relevant commencement dates of his occupation as a health care aide. It was unclear from that testimony whether the business was a hobby or an earlier occupation. Mr. Sarra said that the business had been operating since high school, at various degrees of intensity, until recently, when his cars were seized for reasons not specified. He testified that he never did any physical repairs or work of any kind on the cars themselves and only obtained his own driver's licence in 1994. While the business involved some income, no details were given.
Based on the evidence presented, the November 4, 1992 accident had no apparent impact on the car business, whether characterized as a hobby or an earlier "occupation or employment", nor on Mr. Sarra's ability to perform whatever duties were involved. Indeed the business was expanded subsequent to the accident.
II. Health Care Aide
In or around late 1991, Mr. Sarra attended a course at Riverdale Hospital for training as a health care aide. After he completed the course, he found no jobs available at the hospital, so he registered with Nursing Unlimited ("NU"), a temporary help agency which supplied nurses, nurses' aides and health care aides to area hospitals, as needed. NU ceased business in May 1992 with Unlimited Nursing Inc. ("UNI") taking over NU's hospital clients and its pool of available hospital workers.
Mr. Sarra obtained occasional employment through NU and UNI in 1991 and 1992 until his accident in November 1992. During this period he worked as a health care aide under various contracts obtained through the agency, with hospitals and private persons. Most of his assignments, he said, took place at Riverdale, a chronic care hospital. The terms and duration of his employment contracts varied, as did his duties.
Mrs. Halajian, the owner of UNI, testified that NU and UNI gave no guarantee of employment and Mr. Sarra worked on an "as-needed" and "as-available" basis. Mrs. Halajian testified that most hospital requests came for temporary help on the day shift. Mr. Sarra preferred the afternoon and night shifts which were less available.
Mr. Sarra testified that he worked full-time, often completing more than one shift consecutively. Hospitals had three shifts: 7-3 (day); 3-11 (afternoon) and 11-7 (night). Day shifts were the most physically demanding as patients needed to be washed, dressed and fed. Afternoon and night shifts were essentially light duty, in terms of physical exertion and lifting, except when patients fell out of their beds. The hospital had a Hoyer lift, a mechanical device for assisting in the transfer of patients from beds to chairs and back, but Mr. Sarra and Ms. Douglas, Director of Occupational Health and Safety at Riverdale, said that this was not functional for lifting patients who had fallen to the floor. Therefore lifts from the floor were done manually, normally with the assistance of other health care workers, but occasionally without, depending on the circumstances and the judgement of the particular health care aide.
Mr. Sarra said that he would lift patients from the floor himself, on occasion, if they weighed less than 200 pounds. He estimated that patients fell out of their beds ten times during his training period and ten times thereafter.
From the nature of his testimony, it was apparent that Mr. Sarra had no detailed recollection of the frequency and nature of his work assignments through NU and UNI. I accept a summary of assignments and payments for work through UNI from May to November, 1992, submitted by Mrs. Halajian, as probative and helpful evidence of work performed. I heard no evidence to suggest that the pattern evident from May 1992 onward was inconsistent with that pre-May 1992, after Mr. Sarra's training was completed, or that he worked for agencies other than NU and UNI.
According to UNI records, from May 1 to July 17, 1992, Mr. Sarra worked 183 hours on floor duty at Riverdale, primarily on afternoon and night shifts when most patients were confined to their beds. From July 24 to July 31, 1992, for a total of 63 hours, Mr. Sarra was on a private duty assignment for a patient (Mr. D.) on the chronic care ward. From the week ending August 7 until the week ending November 6, 1992, Mr. Sarra worked a total of 516 hours on private duty assignments with ambulatory patients (Mr. H. and Mr. T). His assignments for these patients were primarily in the afternoon and night shifts and his duties consisted mostly of observation, and were not physically demanding. They involved no lifting, twisting or bending, even according to Mr. Sarra.
For the weeks prior to July 24, Mr. Sarra averaged one to two eight hour shifts per week. After that, except for the week ending August 21 and September 25 when he averaged five eight hour shifts per week.
Mr. Sarra claimed that UNI did not offer him further employment after his accident because of his back complaints. Mrs. Halajian said that the Staffing Co-ordinator at Riverdale called her on the day of the accident to say she should not send Mr. Sarra back as his work was unsatisfactory. He had allegedly abandoned a patient to cash a cheque. She maintained she had received numerous complaints about his services. Asked to offer evidence of written complaints, she submitted a memo to the Staffing Co-ordinator at Riverdale, dated September 30, 1991, apparently during Mr. Sarra's training. I need not decide the merits of either position. The circumstances which brought his arrangement with UNI to an end are not determinative in any way of the statutory issue before me; that is: Mr. Sarra's ability in November 1993, to perform the essential tasks of his pre-accident employment or occupation.
I find that the pre-accident employment consisted of temporary services as a health care aide and work as replacement hospital staff for chronic care wards at Riverdale Hospital, mostly on the less physically demanding afternoon and night shifts. He also had been assigned to two ambulatory patients for extended periods, with minimal or no physical demands.
Mr. Sarra received Schedule benefits until November 7, 1993, at which time he could have sought work as a health care aide through another temporary employment agency, or directly at a hospital. The question is whether he was able to perform the essential tasks of that occupation.
b. Mr. Sarra's Pre-accident Occupation
I make the following findings regarding the occupation of "health care aide". I accept the evidence of Mr. Sarra, Ms. Douglas and the Insurer's witnesses, Dr. White and Dr. Rush, that this occupation can be physically demanding to the extent that it involves unassisted patient handling. I also accept that heavy lifting is usually done with help, but that exigencies will occur, and involve some unassisted lifting, bending or twisting.
Ms. Butler, Clinical Director, and the physiotherapist at F.I.T. For Work Centres, assessed Mr. Sarra's ability to perform his pre-accident duties. She obtained her understanding of the physical requirements of the position by looking up the entry for Nurse Aide in the Canadian Classification and Dictionary of Occupations (CCDO) and by speaking with Ms. Douglas.
The CCDO defined the occupation of Nurse Aide, as distinct from orderly, as follows:
Assists with care of patients in hospitals, extended-care facilities, nursing homes, clinics and similar establishments: Answers call-bells to determine patients' needs. Bathes, dresses and undresses patients. Takes and records temperature, pulse and respiration rates. Measures and records patients' fluid intake and output. Distributes and collects food trays. Pushes wheelchair or stretcher to transport patients to treatment unit. Cleans, sterilizes and distributes treatment trays, instruments and other supplies. Cleans and makes beds. Tidies utility, supply and other work areas. Feeds patients, if required. Performs duties in psychiatric unit, outpatients, and other specialized areas, if required.
Ms. Douglas provided Ms. Butler with a document of activity demands for a Health Care Aide [of unknown origin or context] and a job description questionnaire for the position of Health Care Aide at Riverdale.
Ms. Douglas testified that the questionnaire was completed by person(s) unknown for the purpose of assessing the position under pay equity legislation. Although it was referred to by Ms. Butler as a job description, in my view, this term is somewhat misleading. The questionnaire, with handwritten responses, contains subjective references personal to its author such as emotional elements of the job and reaction to poor air circulation. It is more accurately described as one person's response to specific questions about his/her job experience, working as Health Care Aide for Riverdale in August, 1991.
Both documents provided by Ms. Douglas list walking and standing as the predominant activity (80-95%), with some lifting and bending, as required, in the transferring of patients from bed to chair, etc.
c. Medical evidence regarding Mr. Sarra's abilities
I. Before the motor vehicle accident
Dr. Black, in his clinical notes as family doctor, indicated that he saw Mr. Sarra on January 7, 1992 and diagnosed a back strain, cervical tenderness and muscle spasm above the mid-scapula/shoulder area. Dr. Black made reference to an incident at work but noted that Mr. Sarra "decided against wcomp request". He next saw Mr. Sarra on November 9, 1992, following the motor vehicle accident.
Dr. G. Gale, another general practitioner, saw Mr. Sarra for the incident referred to by Dr. Black on January 11, 1992, according to his clinical notes. At that time, Mr. Sarra complained of left shoulder girdle and intra scapular pain. Dr. Gale diagnosed paravertebral spasm of the dorsal spine and a workers' compensation claim was initiated for lost time from work. In a letter dated February 28, 1992, Dr. Gale cleared Mr. Sarra to return to his work duties. Dr. Gale continued to see Mr. Sarra through to April, 1992. Low back pain was the main complaint recorded in the clinical notes from January 23, 1992 onward.
II. After the Motor Vehicle Accident of November 4, 1992
Dr. Black saw Mr. Sarra on November 9, 1992. regarding the accident and diagnosed hyperextension of the cervical spine. He was seen again on November 20, 1992 and a spasm of the neck muscles was noted. Mr. Sarra now reported pain in the shoulder blades and lower back. On January 19, 1993, Mr. Sarra reported to Dr. Black that his low back had improved. Neck pain was the complaint on April 6, 1993. On May 18, 1993, Dr. Black's clinical notes indicate that Mr. Sarra reported that he fractured his ankle when he stumbled after a spasm of his neck and back. On August 5, 1993, Dr. Black noted a spasm of the trapezius muscle and prescribed Flexoril.
During the fall of 1993, Mr. Sarra was assessed over a period of weeks at the Canadian Back Institute ("CBI"). On September 8, 1993, his initial assessment, Mr. Sarra reported intermittent "central lower neck pain" which radiated bilaterally, along with chest and left elbow pain. His symptoms were reportedly aggravated by prolonged sitting and standing. In the CBI report of October 8, 1993, Mr. Sarra is said to have described his former work as "light in nature", "waiting for him when he is ready", but added that his employer was reluctant to employ him because of accident history. The CBI found good progress in lifting ability and Mr. Sarra was encouraged to begin a job search on October 28, 1993.
In the CBI discharge report of November 5, 1993, Mr. Sarra's job demands were described as "varied, depending on the particular job for a private company" and Mr. Sarra's duties were that he was "responsible for the transportation of patients, dressing and turning of patients, etc". Mr. Sarra reported unlimited tolerance at this time for walking and sitting but standing was limited to one hour. He apparently demonstrated a tolerance of three hours combined walking, sitting and standing.
Dr. White testified regarding his examination of Mr. Sarra in August and October of 1993, elaborating on his written reports somewhat. Applying his own understanding of the duties of a health care aide, gained from his own observation in hospitals, he concluded Mr. Sarra "would be physically fit to return to the essential duties of his previous occupation" after completing the CBI rehabilitation programme "without significant restrictions on his physical activities or duties". Dr. White found pre-existing degeneration of the C5-6 cervical spine, with diffuse tenderness noted in the neck and superior trapezius area. Clinically, movement of the thoracic and lumbar spine were normal. Dr. White said that while in August, 1993, he observed a need of reconditioning exercises to resolve residual symptoms, in October, 1993, he observed a substantial improvement and recommended a return to work.
I also heard testimony from Dr. Rush, who examined Mr. Sarra on one occasion in October, 1994. His knowledge of the duties of a health care aide was empirical, as he had been one for an extended period. He said he found nothing, clinically, which would prevent Mr. Sarra from performing whatever duties he was able to perform prior to the accident. In his report of October 12, 1994, he stated:
[He] does not now have any objective medical evidence of any medical anatomical or physiological impairment restricting him from performing any physical activities. There is no objective evidence that performing any physical activities will cause any harm or damage to [him]. Any discomfort, if present, during activities is likely related to the activity itself and is not related to any damage or injury resulting from the accident of November 4, 1992.
In other words, Dr. Rush found no objective medical condition in need of treatment, or physical restrictions.
In June, 1995, Mr. Sarra was seen by a physiotherapist and occupational therapist at F.I.T. For Work Centres. He filled out forms and completed certain exercises. Ms. Butler, in a joint report, concluded that Mr. Sarra at that time was "functioning between the light and medium physical demands level...below the medium to heavy demands of his job" as a health care a ide/nu rs ing ass ista nt.
d. Conclusions
For benefits to be paid after November 7, 1993, I must conclude that Mr. Sarra was "substantially unable" to perform the "essential tasks" of his pre-accident employment or occupation.
In the Steele case, Arbitrator Palmer quoted a dictionary definition of "substantial" as meaning "of real importance or value...of large size or amount" and "essential" as meaning "absolutely necessary...fundamental" and concluded:
Accordingly, it is not some inability to perform key tasks, but a sizeable inability which is compensable. Similarly, not every task performed prior to the accident will meet the criterion of "essential" -- only those that are basic or absolutely necessary.
It should be noted that the Steele case involved section 13, not section 12 benefits, but the term "essential tasks" is common to both. The Arbitrator also emphasized that "pain and suffering are not compensable under the Schedule unless they result in substantial impairment of the Applicant's ability to perform her essential tasks".
When working as a patient escort or attendant for ambulatory private patients, Mr. Sarra’s duties were primarily those of accompaniment and observation. Nothing in the medical evidence or testimony suggests any inability to perform those tasks.
Mr. Sarra’s "essential tasks" of his pre-accident occupation, as experienced on a hospital ward, included walking, observing, dressing, changing and assisting patients, ambulatory or not, in a team approach with nurse’s assistants and registered nurses. Occasional bending, twisting or lifting was required when transferring a patient from bed to chair, etc. Ms. Douglas testified that others with back complaints performed the duties of health care aides. This is consistent with the uncontradicted evidence that lifting was to be shared and refusal to lift unaided would not jeopardize one’s position as health care aide. Mr. Sarra was found able to lift up to 85 pounds in November, 1993. Nothing in the evidence suggests that lifting over 85 pounds was a job requirement, essential or otherwise.
I conclude that as of November 7, 1993 onwards, Mr. Sarra did not suffer a "substantial inability" to perform the "essential tasks" of his employment.
Order:
Mr. Sarra is not entitled to his weekly income benefits under section 12(1) of the Schedule from November 7, 1993 onwards.
Mr. Sarra is entitled to his expenses incurred in the arbitration.
August 17, 1995
Ruth Hartman Arbitrator
Date