Neutral Citation: 1995 ONICDRG 122
File No. A-009269
ONTARIO INSURANCE COMMISSION
BETWEEN:
GERARD J. LESSARD
Applicant
and
CANADIAN GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Gerard J. Lessard, was injured in a motor vehicle accident on August 28, 1993. He applied for and received statutory accident benefits from the Insurer, pursuant to section 13 of Ontario Regulation 672,1 as an unemployed claimant. Mr. Lessard claims that he had a valid offer of employment at the time of his accident, and is entitled, therefore, to be paid weekly income benefits pursuant to section 12.
The Insurer terminated payment of the weekly benefits under section 13 on June 17, 1994. Mr. Lessard claims payment under either section 12 or 13 is due him from June 18, 1994, onward. 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 Mr. Lessard entitled to be paid benefits under section 12 rather than section 13 from the date of his accident?
Is Mr. Lessard entitled to be paid benefits after June 17, 1994?
The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.
Result:
Mr. Lessard did not have a valid offer of employment at the time of his accident; therefore, he is not entitled to payment of benefits under section 12.
As of June 17, 1994, Mr. Lessard did not continue to suffer, as a result of his accident of August 28, 1993, substantial inability to perform the essential tasks in which he would normally engage; therefore, he was no longer entitled to weekly benefits pursuant to section 13 after that date.
The Applicant is entitled to his expenses incurred in respect of the arbitration hearing, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.
Hearing:
The hearing was held in Ottawa, Ontario, on May 1 and 2, 1995, before me, Roger Young, arbitrator.
Present at the Hearing:
Applicant:
Gerard J. Lessard
Applicant's Representative:
Martin Diegel
Barrister and Solicitor
Insurer's Representative:
Claude Blouin
Barrister and Solicitor
Witnesses:
The Applicant, Mrs. Sylvie Lessard, Madame Cecile Lessard, Michel Paquette, Joseph Vaillancourt.
The proceedings were recorded by Paolo Maiorino of Gillespie Reporting Services.
Interpretation services in the English/French languages was provided by Ms. Catherine McNeely.
Exhibits:
The ten exhibits before the arbitrator are listed in Schedule A.
Background:
Gerard Lessard is 33 years of age, has been married for 11 years, and has two children, a daughter aged 6 and a son aged 3 years. He and his family live in Vankleek Hill, near Hawkesbury, Ontario. Mr. Lessard has occupational training as a high-pressure welder, as a hair dresser and as a health care aide. However, during much of the year preceding the accident, Mr. Lessard had been unemployed and in receipt of social assistance. He had some intermittent income from hair dressing.
On August 28, 1993, Mr. Lessard was riding on a motorcycle driven by a friend. They were cut off by a pick-up truck, which they chased and apprehended. Mr. Lessard dismounted to speak with the driver. While standing at the edge of the road, Mr. Lessard was "clipped" on the left leg by a passing car travelling at about 80 to 100 km/h. He was thrown into the air, whereupon he struck the door post and windshield of the car, subsequently landing on his head on the pavement. He was still wearing his motorcycle helmet which prevented serious head injury, although he claims that he was briefly knocked unconscious.
Mr. Lessard was taken by ambulance to the Hawkesbury and District General Hospital, suffering from pain in his left arm, left leg and back. He was X-rayed during the next three hours and released. Physiotherapy was prescribed to help with his injuries, particularly for his left leg which he could not straighten completely for several months. Because of his leg injury, Mr. Lessard says he had to sleep on his back. Only later, when he was able to resume his customary habit of sleeping on his stomach, was he also able to sleep with his arms above his head. On November 28, 1993, his right shoulder dislocated; this happened several more times before he underwent corrective surgery in December 1994.
On October 7, 1993, Mr. Lessard filed an "Ontario Automobile Insurance Application for Accident Benefits" form with the Insurer. In section 5, "Claimant's Medical Condition as a Result of Accident", the nature and extent of the injuries suffered by Mr. Lessard is described as follows:
induration left calf with flexor contracture, antalgic gait, with weakness foot atrophy quadriceps, right iliac wing tender, sever[e] [sic] back pain with spapsem [sic] up to colar spine, swelling left wrist c tenderness.
Nothing appears in the space marked: "If you were Employed at Time of Accident - Do injuries sustained prevent you from performing the essential tasks of your employment? Explain."
In the space immediately below that entitled: "If you were Not Employed at Time of Accident - Do you suffer a substantial inability to perform the essential tasks in which you would normally engage? Explain," Mr. Lessard wrote:
Yes! Can not help around the house work mowing the lawn etc., helping with the kids. Cannot lift heavy. I have to walk with cane.
In section 6 "Claimant's Employment", Mr. Lessard first placed a check mark in the box for "Employed", but then crossed that out and, instead, checked the box for "Unemployed". Then, in answer to the question: "If unemployed, have you worked 180 days out of the last 12 months?", he answered "No".
On another form completed the same day, October 7, 1993, entitled "Ontario Automobile Insurance Employer's Confirmation of Income", at section 3, "Details of Employment", Mr. Lessard wrote in large letters across the page: "Unemployed".
On November 10, 1993, the Insurer notified Mr. Lessard that his claim for weekly benefits had been approved at the rate of $185.00 per week (pursuant to section 13 of the Schedule) as he was unemployed and had not been employed for 180 days in the year preceding the accident.
In support of his claim to be entitled to benefits under section 12 of the Schedule, Mr. Lessard presented to the Insurer a typed note as follows (exhibit A-5):
Hawkesbury 8 octobre 93
A qui de droit,
La présente est pour vous confirmer que M. Gérard Lessard (domicilié au 111 High st. Vankleek Hill, Ont. K0B 1R0), était engagé pour mon entreprise de bois de chauffage dans la semaine débutant le 7 septembre 93 à raison d'un salaire de $400.00 pour 5 jours de travail par semaine.
Merci.
Mr. Joseph Vaillancourt
Firewood Dealer
(613) 632-0332
(signature)
The body of that note, I believe, may be understood to state (my translation):
To whom it may concern:
This will confirm that Mr. Gerard Lessard of 111 High St. Vankleek Hill, Ont., K0B 1R0, was hired to work in my firewood business beginning the week of the 7th of September 1993, at a wage of $400.00 for a five day work week.
A second, later, hand-written note (exhibit A-6) providing much the same information was also given to the Insurer. It says:
Hawkesbury Ont., 12 Nov. 93
A qui de droit!
La presente est pour faire suite à la lettre disant que, M. Gérard Lessard (demeurant au 111 High St. C.P. 27 Vankleek Hill, Ont., K0B 1R0), qui devait commencer a travailler pour mon entreprise de bois de chauffage, a partir du 7 sept. 93, avait eu une entente avec moi, soit le 19 août 93, confirmant qu'il debuterait le travail a la date mentionée ci-haut.
Merci.
(signature) J. Vaillancourt
Firewood Dealer
(613) 632-0332
The body of this note may be understood to state that Mr. Vaillancourt is confirming that he had an understanding with Mr. Lessard, made between them on the 19th of August 1993, that Mr. Lessard would begin work in Vaillancourt's firewood business on September 7, 1993 (again, my translation).
The Insurer rejected these notes as being insufficient, in its view, to establish that Mr. Lessard had a legitimate, pre-accident, offer of employment such as to bring him within section 12 of the Schedule. That unresolved dispute forms one of the issues of this arbitration. The Insurer took the position that both the offer of employment and the written evidence thereof had to pre-date the accident. In fairness, this position was taken before the decision in Robert Oshana and Progressive Casualty Insurance Company and State Farm Mutual Automobile Insurance Company, November 17, 1994, OIC File: A-002167 was published.
On June 8, 1994, the Insurer wrote to Mr. Lessard, advising him that his weekly benefits would be terminated as of June 17. That letter states, in part:
Please be advised that we have recently received documentation from you[r] [sic] physiotherapist and also from Dr. Mascarenhas who did the independent medical examination. We have been advised that your doctors agree that you are capable to perform all your essential tasks and essential duties, therefore, basically you are in pre-accident condition and they have advised that you are capable at this point to seek employment.
That action on the part of the Insurer forms another of the issues in dispute before this arbitration hearing.
Viva Voce Evidence and Argument at Hearing:
The Offer of Employment:
Mr. Lessard testified that the job offer was made during a conversation on August 19, 1993, when he went to gas up his vehicle at Mr. Vaillancourt's service station and enquired about the possibility of work. The job was not immediately available because Mr. Vaillancourt was just in the process of getting this venture going. There was an understanding that he would commence work as of September 7, at $400.00 for a week of 40 to 50 hours duration. The work would involve cutting, splitting, hauling, stacking, selling and delivering firewood. Mr. Lessard stated that he knew Mr. Vaillancourt from having previously worked for him as a cook in a pizzeria, in Maniwaki, Quebec, some 11 years earlier.
As it turned out, Mr. Vaillancourt did not ever do much more than begin to put some of his equipment in place. At that point he owned a skidder and a five-ton truck, and some small machinery such as a chain saw and axes. He did not have a splitter, but acquired one later. When asked by the Applicant's counsel to describe the circumstances of the job offer, Mr. Vaillancourt stated (question 15, line 3, page 6 of the transcript of proceedings):
Q. Okay. And had you had any occasions to meet with Mr. Lessard, in relation to this business?
A. Yes, he came to see me in August. I don't remember the time there. I know it's in August. And he offered me -- he asked me for a job there and I said maybe. I said, come see me in September. I think we start gave you to take care of ...
Under cross-examination, Mr. Vaillancourt stated (question 40, line 18, page 10 of transcript):
Q. ... Did you ever start the firewood business?
A. Yes, a couple of days, but I can't call that start. I start to place machinery, cut two, three trees. And I forgot the damn thing.
And a little later at questions 43-46, lines 2-13, page 11:
Q. ... And so the business itself, the business of like splitting, there was no splitting done --
A. It's not a business. It was not a business.
Q. It was not a business?
A. We didn't start.
Q. You didn't start. Okay.
A. Well, I don't call that a start. It wasn't registered, nothing. We can't call that a business. It was in our mind to start a good business.
Q. It was a plan?
A. That's right.
The main reason that Mr. Vaillancourt did not pursue his firewood venture is that he suffers from heart problems, and has for some time. He discontinued his efforts and sold off the equipment. He explained that he had been asked by Mr. Lessard to sign the two notes (exhibit.'s A-5 and A-6) attesting to the job offer, in support of Mr. Lessard's claim for weekly accident benefits. The notes had been prepared by Mr. Lessard's wife, and brought by the Applicant to the service station where Mr. Vaillancourt signed them. This was done some time after Mr. Lessard first applied for benefits.
The Applicant stated that he did not understand that he ought to have mentioned his prospective employment when he first filled out his claim for weekly accident benefits. Nor did he ever mention to the rehabilitation case worker assigned to him by the Insurer that he had received such a job offer, although he did advise her that he had been unemployed and was in receipt of family benefits assistance at the time of his accident. He told her about his varied occupational background as a welder, a hair dresser and a health care aide. He even explained that he had to give up welding some years ago because of bronchial asthma. Then, the business of hair dressing had not proved lucrative enough to support his family, so he had trained as a health care aide. However, he had been laid off from that work in May 1993. He said that he had also done some dog grooming, but there was not much demand in that area of work either.
Mr. Diegel argued that an agreement had been reached that the Applicant would begin work on September 7. The accident intervened and Mr. Lessard's injuries rendered such work impossible. It did not matter that Mr. Vaillancourt had closed down the business shortly thereafter. The Oshana decision, supra., held that the written confirmation of an offer of employment could take place after an accident without imperiling the legitimacy of the offer. In any event, counsel argued that the contra proferentem rule of construction should be applied in the Applicant's favour. To that end, he cited Wigle et al v. Allstate Insurance Co. of Canada (1984), 1984 CanLII 45 (ON CA), 49 O.R. (2d) 101 and Re Vasquez and Co-operators General Insurance Co. (1985), 1985 CanLII 2040 (ON CA), 50 O.R. (2d) 524.
Counsel argued that, based on this offer of employment, Mr. Lessard was entitled to weekly accident benefits under section 12 during the period in which he suffers substantial inability to perform the essential tasks of his occupation or employment. It was clear that he continued to be unable to do the heavy work required in the firewood business.
On behalf of the Insurer, Mr. Blouin submitted that this offer of a job was an "iffy" matter, at best. It was not legitimate, and likely had not been made prior to the accident at all. Mr. Vaillancourt was a friend trying to help Mr. Lessard. The business never really got going; at the time of their discussions, it was only an idea. When it did commence, it only lasted a couple of days. It was not enough now to say that it would have kept going but for Mr. Lessard's accident. The Applicant was not the only person who could have carried on for Mr. Vaillancourt.
Mr. Blouin argued that the notes supporting the job offer were not contemporaneous; they were not written in the ordinary course of business, but had been prepared by Mrs. Lessard. They were submitted only after the Applicant had already stated that he was unemployed. All of this suggested that the offer was not legitimate. Mr. Vaillancourt's own testimony was contradictory. The evidence failed to meet the test suggested by Senior Arbitrator Naylor in Oshana, supra. Any weight given to it ought to depend upon the credibility of the witnesses; here, that was lacking.
Finding:
The question to be decided is set out in section 12(2)1.iii. To be eligible, the Applicant:
... must have been at the time of the accident, entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.
The decision in Oshana, supra, has established that, while the offer of employment must precede the accident, the written evidence of the offer may succeed it. Legitimacy, in such cases, is to be established on the basis of credibility in the circumstances. Before assessing credibility, I think it is also important here to determine whether Mr. Lessard was even entitled to start work.
The evidence of the prospective employer was to the effect that, when the Applicant first approached him on August 19, 1993, to ask for a job, Mr. Vaillancourt said: "Maybe; come and see me in September." (I refer the reader to the excerpts from the transcript reproduced earlier in this decision.) From this, I conclude that there was no definitive offer of employment pursuant to which Mr. Lessard was entitled to start work, but only the possibility that there might be a job for him in September. What else could "maybe" mean, even if the probable wages had been discussed? Why would the Applicant have to ask again if the matter was settled?
As to the issue of credibility, I question whether such a job even existed, given that the business never really did materialize to any extent, nor did it last, even in a preparatory way, for more than a couple of days. Mr. Vaillancourt did not suddenly suffer heart problems and drop his plans. By his own admission he had suffered from angina attacks for some 12 years. He stated that he could not call this a business, nor could he say that it had even started. I conclude that what Mr. Lessard had, at best, was a hope of getting work with Mr. Vaillancourt, if the latter ever did get the firewood business up and going.
Mr. Diegel argued that it was not necessary that the business continue; only that the offer of employment must have been made prior to the accident. It was suggested that Mr. Vaillancourt had to discontinue operations because, after his heart problems, he no longer had available to him the services of an essential, trusted employee in the person of Mr. Lessard. Yet Mr. Vaillancourt also stated that he had hired a couple of other men. What happened to them? If they were not capable of carrying on, why were they hired before the Applicant? And, if Mr. Lessard was so crucial to the operation of this business, why did Mr. Vaillancourt not search out Mr. Lessard, and why was he so non-committal when Mr. Lessard enquired about work? All in all, the evidence adduced simply leaves too much to be desired.
On the basis of all the above, I conclude that Mr. Lessard did not have a valid offer of employment and was not entitled to be paid weekly income benefits pursuant to section 12. He was properly compensated under section 13 as a person who was unemployed at the time of the accident. My conclusion is strengthened by the evidence that this is precisely what the Applicant first told the Insurer when he submitted his application for benefits in October 1993.
Are any Weekly Benefits Owed to Mr. Lessard After June 17, 1994?
Mr. Lessard testified that his physical condition since the accident was, and still is, limited in comparison to his pre-accident status. He claimed to have been "very, very active" before his accident, playing "a lot of golf ... at least once a week in the summertime", "lifting weights five times a week", "doing kick boxing practice at least twice a week". In the winter he would "go alpine skiing six or seven times", do "a lot of snow shoeing", "tobogganing with the children", "skating with [his] daughter". Around the house he would do the usual household chores such as putting out the garbage, cutting grass, shovelling snow and painting.
The Applicant stated that, following the accident, his life changed dramatically. He was no longer able to do many of his previous activities. Much sporting activity was completely out of the question. Household chores had become severely curtailed; his wife had to do many of the things he used to do. Activities with his children were limited. He could not even lift his young daughter into the air. Mopping and sweeping strained his back. Cutting the grass or trimming the hedge tired him out. Helping his mother to move by briefly lifting and carrying some furniture exhausted him, and caused him to take to his bed for several days.
The Applicant's wife, Sylvie Lessard, gave corroborating testimony that her husband's activities with the family and around the house had been limited since the accident. He was no longer as active with the children or able to participate in their outings. He could no longer do his former household chores such as mowing lawns, shovelling snow, carrying out heavy garbage. He could not even stand for long enough to do more than one or two hair cuts for friends or family.
Madame Cecile Lessard, the Applicant's mother also provided corroborating evidence as to the difference and the limitations in her son's condition before and after the accident. Michel Paquette, a friend, testified that the Applicant could no longer enjoy golfing and other sporting activities as he did before the accident. Mr. Lessard even had trouble walking much more than 1,000 feet or so.
Both the Applicant and his wife agreed that Mrs. Lessard had operated a day care business, and that she also held a contract with "Les Services Communautaires de Prescott et Russell" to provide transportation services for senior citizens to and from the grocery store, and for other short trips. In the day care business, Mrs. Lessard provided care for up to five children besides her own two. Their ages ranged from one to ten years. When the children were there full time, she earned $350.00 per week for their care. Madame Lessard, the Applicant's mother, as well as Mr. Lessard, would assist with the care of the children. Mr. Lessard was said to have done mostly light chores such as meal preparation, washing dishes and some reading or attending the children. The day care business was in operation from March 20 to December 30, 1994. It was discontinued shortly after Mr. Lessard's shoulder operation.
The contract to drive senior citizens commenced in April 1994, and earned Mrs. Lessard some $397.50 every two weeks, for providing transportation to clients between the hours of 8:30 a.m. and 4:30 p.m., with an hour off for lunch. It was agreed that Mr. Lessard had been the driver for two to two and a half days each week between the start of the contract and his shoulder operation in December 1994. Although the car and the contract were in Mrs. Lessard's name, one of the terms of the contract was that Mr. Lessard be paid $400.00 towards the increased insurance costs incurred by this business operation.
The Applicant acknowledged that the Insurer had notified him in June 1994 that his weekly accident benefits would be terminated as of the 17th of that month. He disputed the validity of this action, but acknowledged that it seemed to be based on the opinions expressed by Dr. Mascarenhas, and his own physician, Dr. Arnold. Mr. Lessard challenged those opinions and claimed that they were incorrect in their assessment that he had returned to "pre-accident" condition.
The Applicant acknowledged that he had seen a surveillance videotape made on the Insurer's behalf on July 7, 8 and 11, 1994. This showed the Applicant driving seniors in the Hawkesbury area all day on the Thursday and Friday, and from 8:20 a.m. to 1:00 p.m. on the Monday. The Applicant could be seen helping people in and out of the car; loading groceries from carts into the trunk; and later carrying these groceries to the passenger's home. The opening and closing of doors, assisting of passengers, and carrying of bags was done with either or both hands and arms, and with no visible signs of any limitation of movement. Mr. Lessard was also seen at one point filling the gas tank and washing the windshield, using his right hand and arm, especially while leaning and stretching over the front of the car. The Applicant maintained that these duties were of a light nature for the most part, and not physically taxing, although there were times when he could not do them because he was "worn out".
The documentary evidence which was adduced is listed in the Schedule of Exhibits appended hereto. This was tendered on consent with no challenge raised as to its authenticity, although counsel for the Applicant disputed the credibility of some of the content. Much of this was not reviewed in any detail at the hearing, and I was asked to peruse it later in reaching my conclusions.
Mr. Diegel argued that Mr. Lessard ought not to have been deprived of benefits under section 13 as of June 17, 1994. It was clear that he continued to suffer from a substantial inability to perform the essential tasks in which he would normally engage. In this regard, Mr. Diegel argued that "the essential tasks in which the Applicant was normally engaged" were comprised of: chores around the house such as painting; mowing the lawn; trimming; carrying out heavy garbage; playing and engaging in strenuous sporting activities such as skating, skiing, golfing, tobogganing, fishing with his children and friends. Counsel argued that the Applicant's continuing problems with his back and shoulder disabled him to the point where he was entitled to continuing benefits.
Mr. Diegel argued that Dr. Chauhan's medical report and opinion ought to be given greater weight than those of Dr. Mascarenhas and Dr. Arnold, upon which the Insurer relied when it terminated Mr. Lessard's benefits. It was argued that Dr. Mascarenhas had simply written a report with conclusions which had been dictated or suggested by the Insurer.
Mr. Diegel took the position that no set-off of income from the day care business ought to be made against whatever weekly benefits were payable to Mr. Lessard, since his involvement in that operation was minimal; it was really Madame Lessard who did most of the work caring for the children whenever Mrs. Sylvie Lessard was out driving the seniors. If any set-off was to be made for the Applicant's contribution to the income derived from the driving of the seniors, it must be kept in mind that Mr. Lessard's participation was only part-time, and not consistent from week to week.
Mr. Diegel also referred me to the following cases: Thompson et a(. v. Zurich Insurance Co. (1984), 1984 CanLII 1843 (ON HCJ), 5 C.C.L.I. 251; Paese v. United States Fidelity & Guaranty Co. (1985), 1985 CanLII 1984 (ON HCJ), 54 O.R. (2d) 43; Chor Ting Lui'and Wellington Insurance Company, April 28, 1993, OIC File A-001894; Edgar Cowie and The Non-Marine Underwriters., Members of Lloyd's, March 9, 1993, OIC File A-001159; Pietro Manti and Wawanesa Mutual Insurance Company, December 11, 1992, OIC File A-001496; Victoria Anizor and Royal Insurance, January 24, 1995, OIC File A-003702; and Selma Taves and The Wawanesa Mutual Insurance Co., August 10, 1993, OIC File A-003659.
Mr. Blouin argued that the Insurer had properly relied upon the opinion of Dr. Mascarenhas, an experienced examiner and disability evaluator whose credentials were well described, when deciding to terminate the weekly accident benefits on June 17, 1994. Dr. Mascarenhas had concluded that the Applicant could perform the essential tasks of his life, based on the information that Mr. Lessard was unemployed. Dr. Arnold had signed off, agreeing with Dr. Mascarenhas' assessment. All of this followed the previous similar opinion of the physiotherapist.
Mr. Blouin pointed out that the Insurer had sent the proper notice of cessation of benefits to Mr. Lessard, including notifying him of the reasons for taking this action. Then, to protect itself against further claim, the Insurer hired investigators to carry out surveillance on Mr. Lessard. They found that he was working, driving senior citizens, for the three days that he was watched. Mr. Lessard did not deny this; he even agreed that he could be seen on the videotape helping people into and out of the car, and carrying packages which were loaded into and taken out of the trunk. Both hands and arms were seen to be freely used; the motions were fluid. The car had also been serviced by Mr. Lessard at a local service station. At no time was there any indication that the Applicant was having any difficulty with his back, his shoulder, his legs or any other part of his anatomy.
Although the Applicant had not at any time advised the Insurer that he had been working, it was clear that the Lessards were operating two businesses between them. While one drove seniors on their errands, the other operated the day care business. Obviously, there was no disability on the part of Mr. Lessard from April to December 1994, at least none which prevented him from participating in the income-earning operations being run in his wife's name. Mr. Blouin stated that the Insurer was not asking for recapture of any benefits already paid out. However, should I conclude that the shoulder injury was related to the accident, and that further weekly benefits were owed under section 13 for any period subsequent to June 17, 1994, then the Insurer was seeking a set-off of any income earned during the period of additional weekly benefits so ordered. Counsel referred to the decision in Manti, supra, and asked that I draw the inference that any entitlement to further benefits ought to be reduced to nil.
With respect to defining the "essential tasks" which would apply to Mr. Lessard's situation, Counsel cited Luf, supra, Cowi'e, supra, and Taves, supra. Mr. Blouin argued that the evidence indicated that Mr. Lessard could look after himself, that he was able to care for his own children and others, that he could make meals and do light household chores and go for walks. Even though the Applicant did have some on-going limitations, he was not precluded or prevented from doing his essential tasks. The issue was not whether Mr. Lessard had returned to his pre-accident activities but whether he suffered a substantial inability to perform the essential tasks in which he would normally engage. It was clear that he had been performing such tasks since April 1994, and certainly since the termination of benefits.
Finding:
The entitlement to weekly benefits falls solely, as I have concluded above, under section 13; that right is dependent upon Mr. Lessard suffering substantial inability to perform the essential tasks in which he would normally engage. I note that the words "essential tasks" have been the subject of review in the cases cited by counsel. I am guided in my conclusions here by the views expressed by the arbitrators in Lui, supra, Cowi'e, supra, and Taves, supra, which I adopt as my own.
In all of these cases, "tasks" have been distinguished from "activities". For the unemployed, essential tasks have been held to relate to matters of personal care, familial duties, general household chores and searching for employment. It does not include doing everything, or doing necessarily all the activities engaged in prior to the accident. Applying these guidelines, then, to the instant case, I take note, in chronological order, of the following documented medical evidence and reports issued subsequent to Mr. Lessard's accident.
In exhibit 7, a note to Dr. Arnold, Mr. Lessard's personal physician, from Dr. Kornacki, the orthopaedic specialist, written on December 16, 1993, it is said:
...I think Mr. Lessard is doing quite well. I can't understand why he is getting into so many additional problems other than his calf. I think the patient would be fit to return a [sic] convenient work by January or February...
In exhibit B-12, a report to the Insurer from Laurel Rockwell, R.N., of Medex Vocational Management Group, on February 14, 1994, the writer notes that Mr. Lessard's physiotherapist could not identify any reason why Mr. Lessard could not complete his tasks of daily living, noting also that he had begun assisting his wife with some of the household chores.
Exhibit B-7, Dr. Mascarenhas' report of March 28, 1994, states that Mr. Lessard has been examined and is determined by this specialist to be capable of performing the essential tasks of looking for work, personal care and household responsibilities. The real continuing problem noted is that Mr. Lessard suffers from mechanical back pain, aggravated by activity and relieved with rest.
According to exhibit B-15, a report written by Laurel Rockwell on May 6, 1994, it is noted that two days previously Dr. Arnold had stated that Mr. Lessard was capable of completing his "activities of daily living and essential household tasks ... as well [as] job seeking activities."
According to exhibit B-6, the Occupational Therapy Assessment Report, May 10, 1994, provided by Catherine Cook of Para-Med Health Services, Mr. Lessard was "independent with all of his personal care activities", although he was unable to perform heavy domestic chores, and had difficulty sitting for long periods of time.
The evidence of both Gerard and Sylvie Lessard was that the Applicant had been assisting with the operation of the day care business which commenced in March 1994. Mr. Lessard was doing, at least some meal preparation for, and some supervision of, his own and those children attending the day care. By April 1994, he was, according to my understanding of the evidence, also participating in the driving of the seniors, at least in a part-time fashion. The videotape confirms that this was so in early July 1994, within a few weeks after benefits had been terminated by the Insurer.
I conclude on the basis of all the above that, on June 17, 1994, the Applicant no longer suffered substantial inability to perform the essential tasks in which he would normally engage. Therefore, the Insurer was within its rights to discontinue the payment of weekly benefits.
The Issue of the Shoulder Injury:
Mr. Lessard claims that his right shoulder dislocation problem is a result of the accident, and is an on-going disability which entitles him to the continuation of weekly accident benefits. He agreed that he had not complained of problems of dislocation until some three months after his motor vehicle accident. He testified that he had never had any shoulder problems prior to his accident (lines 14/15, page 33, transcript). He stated that his right shoulder dislocated itself some six times between his accident of August 28, 1993 and December 5, 1994, when he was operated on to repair the problem.
Mr. Lessard acknowledged that there was no mention of a right shoulder problem when he saw Dr. Kornacki on September 15, 1993 (exhibit 5), although there was mention of lower back pain and problems with his left leg. Mr. Lessard disagreed with the report done by Dr. Mascarenhas on March 28, 1994, which concluded that the dislocation of his right shoulder could not be attributed to the motor vehicle accident. Mr. Lessard had first seen Dr. Chauhan, who operated on his shoulder, on June 23, 1994. By then, he had already dislocated his shoulder three times - on November 28, 1993, April 10 and May 8, 1994. Dr. Chauhan's report of that first visit also speaks of Mr. Lessard suffering neck pains after playing golf about a week beforehand. Mr. Lessard stated that he had suffered stiffness in his neck lasting from two or three days to a week, on two or three occasions since his accident.
Mr. Diegel took the position that Dr. Chauhan's report was to be preferred over those of Dr. Mascarenhas and Dr. Arnold. It was argued that the shoulder injury clearly resulted from the motor vehicle accident.
Mr. Blouin countered that three doctors' opinions were to be looked at, along with that of a registered nurse and a physiotherapist. Mr. Lessard did not complain of shoulder problems until some three full months after the accident. There is nothing in two doctor's reports, those of Dr. Arnold and Dr. Kornacki, earlier than this. The physiotherapist did not think that the shoulder problem was related to the accident. Nor did Dr. Mascarenhas. Dr. Arnold, the Applicant's personal physician, noted in her report of May 16, 1994, that while Mr. Lessard claimed his back pain and shoulder problems stemmed from the August 1993 accident, there was a history of possible dislocation of his right shoulder as early as January 1991, and a history of low back pain in March 1993. This pre-dates the accident, and places in doubt the Applicant's claim to be entitled to benefits.
Finding:
This part of the Applicant's claim for benefits rests upon his own belief that his shoulder problems are caused by the accident of August 28, 1993. It is also founded, in part, upon exhibit A-4, a report of Dr. Chauhan of March 8, 1995, which states that the injury to Mr. Lessard's lumbar spine and dislocation of his right shoulder are related to the accident. As a result of his on-going shoulder problems, he will not likely be able to do any heavy work in future, and certainly not as a welder, nurse's aide or hair dresser. Exhibit A-4 is the first time such a statement is made. In exhibit A-1, Dr. Chauhan's report of June 23, 1994, no report of any abnormalities is made, nor is any connection drawn between the shoulder problem and the accident. This situation is the same in exhibit A-2, Dr. Chauhan's report of October 4, 1994; no connection is suggested between the shoulder dislocation problems and the accident.
Dr. Mascarenhas' report of March 28, 1994, exhibit B-7, states specifically that the shoulder problem is not related to, nor precipitated by, the motor vehicle accident of August 28, 1993. Dr. Mascarenhas makes reference to pre-existing neck problems dating back some 15 years. As well, Dr. Arnold makes reference to shoulder problems dating back to 1991.
Based on the above, I am not persuaded on a balance of probabilities that the right shoulder dislocation problems suffered by Mr. Lessard from November 28, 1993, onwards, can conclusively be said to have resulted from the motor vehicle accident in which he was injured on August 28, 1993. Therefore, he is not entitled to claim weekly benefits from the Insurer in this regard.
Expenses:
The Applicant seeks an award of the expenses he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
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 McCormi'ck and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
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.
The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vtto Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
Although the issue of expenses was not raised during the hearing, I award expenses to Mr. Lessard on the basis that his application for arbitration was not manifestly frivolous or vexatious nor did his conduct unreasonably prolong the proceedings.
Order:
Mr. Lessard is not entitled to weekly benefits under section 12.
Mr. Lessard is not entitled to weekly benefits under section 13 after June 17, 1994.
The Applicant is entitled to his expenses incurred in respect of the arbitration hearing, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.
September 7, 1995
Roger Young
Arbitrator
Date
SCHEDULE A
Exhibits:
Exhibit A
Tabs 1-12 Applicant's Document Book
Exhibit B
Tabs 1-17 Insurer's Document Book
Exhibit 3
"Progress Notes" Dr. Renee Arnold, March 5, 1993
Exhibit 4
Hawkesbury and District General Hospital Notes, Dr. Renee Arnold, November 28, 1993
Exhibit 5
Hawkesbury and District General Hospital Notes, Dr. J. Kornacki, September 25, 1993
Exhibit 6
Surveillance Videotape
Exhibit 7
Letter from Dr. J. Kornacki to Dr. R. Arnold, December 16, 1993
Exhibit 8
Note from Dr. J. Kornacki to Dr. R. Arnold, October 20, 1993
Exhibit 9
Note from Dr. J. Kornacki to Dr. R. Arnold, September 25, 1993
Exhibit 10
Hawkesbury and District General Hospital Note, Dr. D'Ignazio to Dr. R. Arnold, August 28, 1993
Documents Before the Arbitrator:
Report of Mediator, dated April 22, 1994.
Application for Appointment of an Arbitrator, dated June 6, 1994.
Response by Insurer, dated July 27, 1994.
Reply by Applicant, dated August 22, 1994.
Notice of Hearing, dated September 30, 1994.
Pre-hearing letter, dated February 14, 1995.
Correspondence from C. Blouin to J. Palmer, dated February 28, 1995.
Correspondence from M. Diegel to J. Palmer, dated March 3, 1995.
Notice of hearing by Roster Arbitrator, dated April 10, 1993.