minicounsel

Neutral Citation: 1995 ONICDRG 149

File: A-004238

BETWEEN:

JOHN BAUDER

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

DECISION

The Applicant, John Bauder, was injured in a motorcycle accident on July 19, 1990, and received statutory accident benefits from the Insurer, Jevco Insurance Company ("Jevco"), payable under Ontario Regulation 672/90¹. Jevco terminated his weekly income benefits, effective March 18, 1994, on the basis that the Applicant did not meet the post-156 week eligibility test set out in section 12(5)(b) of the Schedule. Mr. Bauder claims that he continues to be eligible for weekly income benefits.

Mr. Bauder was also involved in a second motorcycle accident on October 20, 1994 and is claiming weekly indemnity benefits from the Insurer under Regulation 776/93².

The parties were unable to resolve their disputes through mediation and Mr. Bauder applied for arbitration.

The issues in this hearing are:

Is Mr. Bauder entitled to weekly income benefits under section 12(5)(b) of the Schedule after March 18, 1994, on the basis that the injuries sustained in the July 19, 1990 accident continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience?
Is Mr. Bauder entitled to weekly income benefits under the provisions of the SABS?
Is the Insurer entitled to repayment of monies paid to Mr. Bauder?

Mr. Bauder has also requested interest on overdue benefits and his expenses of this arbitration hearing.

Mr. Bauder is not entitled to any additional weekly income benefits.
Mr. Bauder shall repay the Insurer the amount of $13,136.93.
The parties may make submissions to me in writing within 21 days of the date of this award, if they are unable to resolve the issue of the expenses of the hearing.

The hearing was held in Kingston, Ontario on May 29, June 26, and 27, 1995 before me, David K.L. Starkman, Arbitrator.

Present at the Hearing

Applicant:

John Bauder

Applicant's

Murray W. Rielly

Representative

Barrister and Solicitor

Insurer's

B.W. Brucker

Representative

Barrister and Solicitor

Witnesses:

Mr. Bauder, Ms. Carol Bauder, Mr. Steve Bray, Ms. Barbara McCourt, Ms. Sarah Emery, Dr. J.W. Hazlett,

The Exhibits filed at the hearing are listed in Appendix 'A' to this decision.

The Evidence of Mr. Bauder

Mr. Bauder testified that he has a Grade 9 education and has worked his whole life. Most of his employment has been in the area of construction as a heavy equipment operator, and truck driver.

Mr. Bauder testified that he has not been able to drive a truck since the accidents. He stated that he has never had a desk job, would not enjoy it, and cannot sit for prolonged periods of time.

He stated that he has good and bad days and thought he was getting better until he was involved in a second motorcycle accident in October 1994. His health has been deteriorating since that time. At present he uses a cane or crutches and cannot walk without assistance. For the most part he rests on the couch at home, and cannot help with the housework.

Mr. Bauder stated that he had been taking prescription narcotic medication for the past years to control the pain in his legs and back, but had stopped taking the medication two months ago. At present he is only taking an anti-depressant.

Medical Evidence

Evidence was given by Dr. J.W. Hazlett, an orthopaedic surgeon. He testified that he saw Mr. Bauder in June 1990 concerning soreness in his left knee which he had injured in a motor vehicle accident some seven years previously.

Dr. Hazlett saw Mr. Bauder again on August 23, 1990, about one month after the first motorcycle accident. His left knee was tender. X-rays were taken but disclosed no obvious problem. At that time Mr. Bauder thought he would return to truck driving in early September.

Mr. Bauder however did not return to work and on November 22, Dr. Hazlett performed surgery on the Applicant's left knee and removed some torn cartilage.

The knee continued to be tender through the winter and spring of 1991.

In August 1991, Mr. Bauder's knee was again x-rayed and it now showed osteo-necrosis, or death of a bone near the thigh bone. In Dr. Hazlett's opinion such osteo-necrosis could have come from a blow to the knee sustained in the motorcycle accident, and might not have shown up until a considerable number of months after the accident.

In March 1992, Dr. Hazlett operated and cut the bone in Mr. Bauder's left knee to change its position and relieve some of the pressure on the leg bone. The knee was in a cast almost continually until May 5, 1992.

As early as June 1991, Dr. Hazlett had expressed the opinion to Barbara McCourt, a rehabilitation caseworker, that Mr. Bauder could return to suitable work. In May of 1992, following the corrective surgery on Mr. Bauder's left knee, Dr. Hazlett indicated to Barbara McCourt that Mr. Bauder might be able to return to some sort of work soon.³

In September 1992, Dr. Hazlett indicated that Mr. Bauder was looking forward to his eventual recovery and return to work, but that for the present he remained totally disabled.⁴

In December 1992, Dr. M.A. Simurda, orthopaedic surgeon, expressed the following opinion concerning Mr. Bauder in correspondence to representatives of the Insurer:⁵

I concluded from this evaluation that this man had an amount of pain within his knee joint which was not in keeping with findings on clinical examination and evidence of pathology. His recent x-rays suggest osteochondritis and a patella baha. This could be associated with some pain on use of his knee but his pain is out of proportion to his alleged pain.

This man is heavily reliant on medication and a very strong narcotic analgesic, Levo Dromoran. This analgesic can be habit forming and addictive. Whether his reliance on this medication is purely for reason of the intensity of the pain that he subjectively experiences within his knee joint or because now some addiction is occurred I am unable to state. His clinical findings do not warrant this strong analgesic.

In the past he had been an alcohol abuser. The intensity of the pain that he suffers which has not responded to any modality of treatment suggest an inability on his part to cope and uses severe pain within his knee joints as a crutch to cover and support this disability. It is my opinion that subjectively his pain is somewhat out of proportion to the findings, that he tends to be over demonstrative and to a degree over states his disability.

Changes evident on his x-ray suggest that there is some pathology within the knee joint which ordinarily would produce a moderate degree of pain, possibly a limp and some limitation of function but ordinarily such a condition does not produce the degree of disability and pain demonstrated and experienced by this individual.

This man's prognosis is very guarded. In his current condition he is unable to work. His disability under the circumstances either because of his reaction to the amount of pain that he has, because he has a dependency to medication, or because of an inadequate personality to cope I am unable to state. He would benefit from the services of a Rehabilitation officer and psychiatric assessment.

Evidence was also given by Sarah Emery, rehabilitation consultant. She had been asked by the Insurer to review Mr. Bauder's file and to determine whether, based on the medical restrictions outlined therein, and based on Mr. Bauder's education and prior employment, there were jobs for which Mr. Bauder might be qualified. Ms. Emery made the following comments in her report:⁶

Transferability of Skills:

Mr. Bauder's employment as a truck Driver and a Shipper/Receiver has contributed to the acquisition of numerous skills. These skills, which are demonstrated by workers in these occupations, are referred to as transferable skills and are considered to be applicable to other occupations. Mr. Bauder's skills include:

A. Knowing how to operate motor vehicles.

B. Coordinating eyes, hands, and feet to control movement of vehicles on roads.

C. Understanding traffic and safety regulations.

D. Being physically able to endure strain of driving for long periods with limited rest stops.

E. Using arithmetic for collecting delivery receipts or money.

F. Applying basic math skills and visual abilities to maintain records, conduct inventories and estimate quantities.

G. Verifying completeness of articles shipped or received.

H. Using hand, and fingers to pack, store, or sort articles.

I. Lift and handle bulky materials and products.

J. Coordinating eyes, hands, and feet to operate a forklift, hand truck or other equipment to load, unload, transport and store goods.

Functional Limitations:

Mr. Bauder's medical conditions of 1)Torn Medial Meniscus of the Left knee with Neuroma/Post Tibial Ostectomy and 2) Loss of Mobility and Range of Motion may impose the following functional limitations:

A. May perform sedentary work

B. May sit up to eight hours, with breaks, per eight hour day.

C. May stand up to two hours, with breaks, per eight hour day.

D. May walk up to two - three hours, with breaks, per eight hour day.

E. May drive up to four hours per eight hour day - not heavy truck driving

F. Avoid climbing/balancing

G. Avoid stooping/squatting/kneeling

H. Avoid bending

Ms. Emery, reviewed a number of jobs that Mr. Bauder could perform as follows:

Service Clerk - Repair Service, Order Dispatcher
Customer Service Representative
Dispatcher - Maintenance Service
Food Tabulator - Cafeteria
License Clerk
Scheduler
Relay Record Clerk
Reproduction Order Processor

Ms. Emery concluded as follows:

Conclusions and Summary:

In summary, Mr. Bauder appears to be employable in an alternate occupation of a sedentary nature. His age, education, experience and physical limitations were taken into account and none of the occupational alternatives in the report should require Mr. Bauder to lift and carry objects weighing over 10 pounds, or frequently bend, push and pull heavy objects, climb and balance, stoop, kneel, squat or crawl.

Mr. Bauder did not agree with this assessment and claimed that he was totally disabled from performing work. He also pointed out that he had never performed desk or sedentary work and that such work would not be suitable to his training.

CONCLUSIONS

The evidence establishes that, as a result of the motorcycle accident on July 19, 1990, Mr. Bauder injured his left knee. It is not clear from the medical evidence whether Mr. Bauder's osteo-necrosis was caused by the motorcycle accident, although the Insurer paid weekly income benefits for a period of time in excess of three years on the basis that Mr. Bauder's inability to return to his pre-accident employment was causally related to his July 19, 1990 motorcycle accident.

The issue now is whether his injuries meet the test in section 12(5)(b) of the Schedule: do they continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience? The second issue is whether the Applicant meets the test in section 7 of the SABS, so as to entitle him to disability benefits as a result of the October 20, 1994 motorcycle accident.

The Applicant believes that he is unable to perform any work. The opinions of his examining medical practitioners are somewhat divided, although there is a strong suggestion that Mr. Bauder would be able to find suitable work if he were interested in looking for work.

I appreciate that Mr. Bauder has never done desk work or sedentary or light work, and that it may not be his first choice. Nevertheless, the Schedule provides a scheme whereby benefits can only continue to be paid, more than three years after an accident, if the Applicant can demonstrate, on the balance of probabilities, that the injuries continue to prevent him from engaging in any occupation or employment for which he is reasonably suited.

With this test in mind, I am not satisfied that the Applicant is incapable of performing work of a sedentary or light work nature. While I appreciate that the Applicant does not feel comfortable looking for such work, the evidence convinces me that such work is available and suitable for the Applicant and that it would provide him with remuneration that is similar to his pre-injury employment. I find that a major factor in the Applicant's inability to return to work since his motorcycle accidents is his lack of motivation to do so.

For these reasons I have concluded that Mr. Bauder does not meet the test in section 12(5)(b) of the Schedule: his injuries do not continuously prevent him from engaging in any occupation for which he is reasonably suited by education, training or experience. He is therefore not entitled to any additional weekly income benefits pursuant to the provisions of the Schedule.

Similarly, I have concluded that the Applicant is not entitled to any weekly income benefits pursuant to the terms of the SABS. Insufficient medical evidence was presented to satisfy me, on the balance of probabilities, that the motorcycle accident of October 20, 1994, caused an additional injury or exacerbated the Applicant's previous injuries so as to entitle him to benefits.

The Issue of Overpayments

It was agreed by counsel to the hearing that during the period up until March 18, 1994, Mr. Bauder had received Canada Pension Plan payments which were not deducted from the amount of benefits that he received from the Insurer. This resulted in an overpayment to Mr. Bauder in the amount of $13,136.93.

There was no objection taken at the hearing as to my jurisdiction to deal with this matter, and counsel for the Applicant acknowledged that there had been an overpayment in the amount of $13,136.93. Consequently, I order that Mr. Bauder repay the Insurer the amount of $13,136.93.

Expenses

The Applicant has requested an award for the expenses of this hearing. Arbitrators have consistently granted expenses unless the claim was fraudulent, manifestly frivolous or vexatious, or the Applicant's conduct unduly prolonged the proceedings. Neither counsel have had the opportunity to address me concerning the question of expenses. I encourage the solicitors to discuss this issue and endeavour to resolve it. I will however remained seized of this matter, and either party can, within 21 days of the date of this decision, make written submissions to me concerning the issue of expenses.

Order:

Mr. Bauder is not entitled to any additional weekly income benefits.
Mr. Bauder is required to pay to the Insurer the sum of $13,136.93.
The parties may make submissions to me in writing within 21 days of the date of this award, if they are unable to resolve the issue of expenses.

October 18, 1995

David K.L. Starkman Arbitrator

Date

APPENDIX "A"

The following documents were introduced into evidence at the hearing:

Exhibit 1

April 21, 1992 correspondence from Barb McCourt to Dr. J.W. Hazlett

Correspondence dated September 29, 1992 from Dr. J.W. Hazlett to Mr. John Bauder

Health and Welfare Canada Notice of Entitlement dated July 29, 1993

Correspondence dated May 24, 1995 with enclosures from the Ministry of Health to the Insurers' solicitor

February 12, 1992 correspondence from Dr. M.A. Simurda to Dr. H. Shaffer

December 22, 1992 correspondence from Dr. M.A. Simurda to Lindsey Morden Claim Services Limited

June 23, 1995 correspondence from Dr. M.A. Simurda to the Insurers' solicitor, Mr. McNeil

January 28, 1993 correspondence from Lyndon Mascarenhas to Mr. Gregory Sly

Accident Benefits Application Package

Record from Hotel Dieu Hospital No. 221316 and radiology report No. 035605

Record from Hotel Dieu Hospital No. 302029

Record from Hotel Dieu Hospital No. 303079

Record from Hotel Dieu Hospital dated June 1, 1990

Correspondence dated February 8, 1993 from Dr. S.D. Bagg to Dr. B. L. Chandrarajan

Correspondence dated May 13, 1993 from Dr. C.N. Johnson to Dr. J. Chesebrough

Résumé of Sarah Emery, Rehabilitation Consultant

Résumé of Barbara McCourt, Rehabilitation Consultant

Résumé of John Bauder

Report dated December 10, 1993 from Sarah Emery to Mr. Robert Bain

Correspondence dated June 17, 1991 from Barbara McCourt to Dr. J.W. Hazlett

Correspondence dated July 27, 1992 from Dr. P.O. Butler to Dr. J.W. Hazlett

Footnotes

Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 (the "Schedule")
Ontario Regulation 776/93 - Statutory Accident Benefits Schedule - Accidents On or After January 1, 1994 (the "SABS")
Exhibit 1
Exhibit 2
Exhibit 6
Exhibit 19

Footnotes

Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 (the "Schedule")
Ontario Regulation 776/93 - Statutory Accident Benefits Schedule - Accidents On or After January 1, 1994 (the "SABS")
Exhibit 1
Exhibit 2
Exhibit 6
Exhibit 19

John Bauder v. Jevco Insurance Company, 1995 ONICDRG 149

Case Summary

The Evidence of Mr. Bauder

Medical Evidence

CONCLUSIONS

The Issue of Overpayments

Expenses

Order:

APPENDIX "A"

Footnotes

John Bauder v. Jevco Insurance Company, 1995 ONICDRG 149

Case Summary

The Evidence of Mr. Bauder

Medical Evidence

CONCLUSIONS

The Issue of Overpayments

Expenses

Order:

APPENDIX "A"

Footnotes